SUD BOSNE I HERCEGOVINE CYI\

Number: X -KR -051161 Sarajevo, 16 February 2007

IN THE NAME OF BOSNIA AND HERZEGOVINA

The Court of Bosnia and Herzegovina. Section T for War Crimes, in the Panel compri~ed of judges Zorica Gogala, as the President of the Panel and Roland Dekkers and Tore Lindseth as the Panel members, with the legal officer Amela Shabo as the minutes taker, in the criminal case against the Accused Gojko Jankovic, for the criminal otfence of Crimes against Humanity referred to in Article 172 paragraph I items a). d), e). f) and g) of the Criminal Code of Bosnia and Herzegovina, upon the Indicnnents of the Prosecutor's Office • of Basma and Herzegovina number KT·RZ 163/05 of 14 February 2006 as amended on 22 December 2006 and number KT·RZ: 43106 of 27 June 2006, following the main trial from which public was partially excluded, rendered and in the presence of the Accused and his Defense cOWlSel- attorney Milan Trbojevit and the prosecutor of the Prosecutor's Office of BiH - Philip King Alcock, on 16 February 2007 publicly announced the following

VERDICT

ACCUSED GOJKO JANKOVIC, son ofDanilo, mother's name Radojka nee Salamadija. born on 31 October 1954 in the village of Trbt&e, municipality ofFoca, with permanent residence at Foea, I.G. Kovaticll street no.13, last knO\\l1 registered address in the vilbge of Trnova~o, municipality of Foca, citizen of Bosnia and Herzegovina, of Serb nationality, married. father of 3 children, literate, secondary school qualific-ations, no prior convictions. served the anny in Kraljevo in 1973 with the rank of Lieutenant awarded with the medal "Milo! Obilic" in 1993, Personal Identity Number 3110954131530, surrendered to the • authorities of Republika Srpska on 13 March 2005, transferred to the International Criminal Tribunal for the Former Yugoslavia oem on 14 March 2005, and transferred to the Court of Bosnia and Herzegovina Detention Unit on 8 December 2005, where he is curremlv detained, .

I

IS GUILTY

BECAUSE:

Between April 1992 and November 1993, witrun the tenitory of the Fo~a municipality, as the leader of an military unit actipg within the Foca Brigade of the Army of the Serb Republic of Bosnia and Herzegovina (hereinafter referred as 'the Army'), he took parr in a

Kraljice lelene br. 88, 71000 Sarajevo, Sosna i Hercegovina, Tel: 033707 roo, Faks: 033 707225 KplUbHue le.JleHe 6p. 88, 71 000 Capajeoo, 60CH

PURL: https://www.legal-tools.org/doc/fac09f/ widespread or sys!tmatic attack by the Anny, members of the Police and paramilitary fonnations against the non-Serb civilian population in the wider area of Fota mWlicipality, whereby those civilians were methodically captured, being physically abused and killed in the attack, separated according to sex, and detained in severJ.! facilities including the Fots Correctional Institute, for the men, and Buk Bijela, the Foca High School, Partizan Sports l-lall, a house at Ulica Osrnana Bikica no.16, a house in Miljevina known as Karaman's house, a house in Trnovaca and other places for the womcn and girls where they were detained under harsh conditions and subjected to physical, mental and sexual abuse by their captors, while Muslim houses and apartments in Fata and neighboring municipalities were looted, destroyed and burnt down, as more particularly set out below:

I. On 14 April 1992 the Accused Gojko Jankovic, commanded a group of soldiers who attacked the hamlet of Bre:};ine/Zubovici inhabited by civilians of Muslim nationality, ordering the group that he commanded the Wlla-wful arrest and taking away of Eoes Hrnjicic, Halid Konjo, Halim Konjo, Enes Uzunovic, Esad Mezbur, Osman Ramie, Osman • Dedovic and Haso Glu~c, who were then forcefully taken by other soldiers to detention in Brad where they were interrogated and beaten, and then transferred to the KPD camp in foca.

2. On J July 1992 Gojko Jankovic commanded a group of soldiers who attacked Muslim ci·vilians hiding in the \voods on the Kremenik hills, wounding several of them and killing Fadila Odobasie, Selima Pekaz and Izet Colo, and also capturing about thirty women and children and seven men, namely Husein Barlov, Ziad Barlov, Meha Barlov, Annin Pckaz, Mujo Ptkaz, Adem Colo and Sifet Colo; these captives, particularly the men, were questioned and brutally beaten, then brought to a clearing where Gojko Jankovic was waiting for them; beatings continued; then the women were walked away whilst Gojko Jankovic and some of his soldiers remained with the seven male ca.ptives who were then shot causing bullet injuries to them, principally head injuries: Sifet Colo- shattering of the cranial vault oones and bones of the base of the skull, Annin Pekaz -frachlre of the cranial vault oones (lnd bones of the base of the skull, upper and lower mandible, right upper arm, right scapula and right femur, Zijad Barlov - fracture of the cranial vault and the base of the skull, fracture of the upper mandible, right thigh bone, right clavicle, right pubic bone and .e injury to tht! right upper ann. Meho Barlov - fracture of the cranial vault bones and bones of the base of the skull, Husein Barlov- fracture of the cranial vault bones and bones of the! base of the skull, Adem Colo· head injury with fractures ofthc skull bones and Mujo Pekaz- head injury with fracture of the temporal-parietal bone, which injuries caused the deaths of all of the seven capturt!d men; all these acts being Gojko JankoviC's part within a greater attack by the rumy upon the villages of Tro§anj and Mje~ja that day, inVOlVing killings of Muslim civilians and the ransacking and burning ofthcir houses.

3. On th~ same day the captured women and children were forced to walk to Buk Bijela, a temporary detention and interrogation facility, under the escort of some of Gojko JankoviC's soldiers, where the Accused Gojko Jankovic arrived later with the remainder of his group, and there they questioned the captured WOIDt!n; the Accused, together with Dragan Zclcnovic and Janko Janjic interrogated female detainee FWS-75 and Gojko Jankovic threatened to gang-rape her if she lied; he then allowed one of the soldiers to take the female detainee in another hut where she was raped by at least ten unidentified soldiers and lost consciousness.

2 PURL: https://www.legal-tools.org/doc/fac09f/ 4. From mid July until mid August 1992, at Partizan Sport Hall in Foea, many Muslim civilians were detained in inhumane conditions, including female detainees FWS-87, fWS- 95, FWS-48, FWS-I05,

between the above dates the Accused Gojko Jankovic, together with an unidentified soldier, took FWS-95 and FWS-48 out of Partizan Sports l[all to a house in Oornje Polje where the Accused raped FWS-95 vaginally;

R few days after the rape described above the Accused Gojko Jankovic came again to Partizan Sports Hall with three other unidentified soldiers and they forced FWS-95 and three other Bosnink women captives to walk to a premises in Foea where they were all ordered to undress and wash and where the Accused raped FWS-95 vaginally;

on a date in late July or very early August 1992 the Accus~d Gojko Jankovic and Beban Vasiljevic drove FWS-95 and FWS-87 from Partizan Sports Hall to a house in Trnova~a where Gojko Jankovic raped both FWS-95 and F\VS- • 87 vaginally and where Behan Vasiljevic also raped FWS-87 vaginally_:

5. On an unknown date in late July or early August 1992 the Accused, Gojko JankoviC. together with Beban Vasiljcvic took the female detainees FWS-105 and DB from the detention Center at Partizan Sports Hall to a house in the village of Tmovae3 in the municipality ofFota where the Accused Oojko Jankovic spent the whole night with female detainee FWS-105 and raped her twice, while Beban Vasiljevic raped female detainee DB and the next morning, on the order of the Accused, they were returned by Beban Vasiljevic to the detention Center at Partizan.

6. On 2 August 1992 Gojko Jankovic, together with Dragoljub Kunarac and Dragutin Vukovi6 (Gaga), removed female detainees FWS-186, FWS-191 and JO, all teenagers, from a house in Alad1:a and took them to a private house in Truovae3, occupied by Gojko Jankovic; female detainee JG only remained there a few days but both ft!male detainees FWS-186 and FWS-J91 were kept there until the end of Jauuary 1993 and throughout that time Gojko Jankovic raped female detainee FWS-186 many times; Dragoljub Kunarac • raped female detainee FWS-19l many times during the [ust two months \\lith Gojko JfIllkovi6 also roping female detainee FWS-191 on one occasion within that period; when female detainees FWS-186 and FWS-19J were moved to another apartment in January 1993 Gojko Jankovic continued to rape female detainee FWS-186 there until the cnd of November 1993; both Gojko Jankovic and Dragoljub Kunamc used female detainees FWS- 186 and FWS-191 as sexual and general servants at the Trnov3~a House, treating them as objects and personal possessions and exercising complete control over their lives.

7. In late October or early November 1992 the Accused, Gojko Jankovlc, together \vith Dragan Zelenovic and Janko Janjic removed female detainees FWS-75, FWS-87, AS and twelve year old AB from the detention Center knO\'lll as "Kamman's house" in Miljevina, and drove them by car to an apartment in Fota near a fish restaurant where lanko Janjic ordered the female detainees FWS-75 and AB to give a bath to the Accused Gojko Jankovic, who raped underage female detainee AB in the bathroom, while Dragan Zelenovic r.1ped female detainee FWS-87 and Janko Janjic raped FWS·7S.

3 PURL: https://www.legal-tools.org/doc/fac09f/ Therefore,

Within a widespread or systematic attack against the Bosniak civilians in the area of Foca Municipality. \Vith a knowledge of such attack and willingly participating in it by his actions hl! committed the actions described under coun1s 1 through 7 of the operative provision of the convicting part of this Verdict,

Whereby he,

Committed the Criminal Offence of Crimes against Humanity under Article 172 paragraph 1 of the Criminal Code of Bosma and Herzegovina (CC ofBiH), as follows:

With reference to Count 1 he committed: forcible transfer of population and imprisonment under Artide 172 (1) items d) and e) in conjlU1ction \\-ith Article 29 CC ofBiH. With reference to Count 2 he committed: murders, tortures and forcible transfer of • population under Article 172 (1) items a), t) and d) in conjunction with Article 29 CC of BiH.

With reference to Count 3 he committed: torture and rape under Article 172 (1) items f) and g) in conjunction with Article 29 CC ofBiH.

\Vlth reference to Count 4 he committed: torture and rape of the injured parties FWS-95 and FWS-87, under Article 172 (1) items 1) and g) CC of BiH, and aided and abetted the torture and rape of the injured party FWS-87, as prescribed under Article 172 (1) items 1) and g) in conjlUlction with Article 180 (1) CC ofBlli.

With reference to Count 5 he committed: torture and rope of the injured party FWS-I05, under Article 1 n (1) Items 1) and g) CC of Bili, and aided and abetted the torture and rape of the injured party DB, as prescribed under Article 172 (1) items f) and g) in conjunction with Artic1c ISO (1) CC ofBiH. •

With reference to Count 6 he committed: torture and sexual slavery of the injured parties FWS-186 and FWS-191, under Article 172 (1) items f) and g) in conjunction with Article 29 CC ofBlli.

With referencc to Count 7 he committed: rape and torture of the injured party AB, under Article 172 (1) items 8) and t) CC of BiH and aided and abetted the torturc and rape of the injured parties FWS-75 and FWS-87, as prescribed under Article 172 (1) items f) and g) in conjunction \\;th Article 180 (1) CC ofBiH.

Consequently, pursuant to the above-referred legal provisions 8S read with the provisions of Articles 39, 42 (2) aod 48 of the Criminal Code of Bosnia and Herzegovina the Court:

4 PURL: https://www.legal-tools.org/doc/fac09f/ SENTENCES HIM

TO LONG TERM IMPRISONMENT OF 34 (thirty Cour) YEARS

Pursuant to Article 56 of the Criminal Code of Bosnia and Herregov1na the time that the Accused spent in cLlStody pending trial as of 14 March 2005, shall be C{)Wlted as part of the pronounced sentence of imprisonrnenl

Pursuant to Article 188 (I) of the Criminal Procedure Code of Bosnia and Herzegovina the Accused must reimburse the costs of criminal proceedings that will be settled by the Court in a separate Decision.

Pursuant to Article 198 (2) of the Criminal Procedure Code of Bosnia and Herzegovina the injured parties are referred to take civil action to pursue theu claim wIder property law .

II • Conversely, pursuant to the provision of Article 284 (c) of the Criminal Procedure Code of Bosnia and Herzegovina (CPC of SiR):

The Al;cused Gojko Jaoko"ic

IS ACQUITTED OF CHARGES

That:

Between April 1992 and November 1993, within the territory of the Foea municipality, as the leader of an intervention unit acting within the Fota Brigade of the Army of tile Berb Republic of Bosnia and Herzegovina (hereinafter referred to as 'the Army'), he took pan in a widespread or systematic attack by the Anny, members of the Police and paramilitary formations against the non-Serb civilian population in the wider area of Fora municipality, whereby those civilians were methodicaJly captured, being frequently beaten and killed ill • the attack, separated according to sex, and detained in several facilities including the Foca Correctional Institute, for the men, and Buk Bijela, the Foca High School, Partizan Sports Hall, a house at Vlics Gsmana Bikica no.16, a house in Miljevina known as Karaman's house, a house in Tmova~a and other places for the women and girls where they were detained w1der harsh conditions and subjl:ctcd to physical, mental and sexual abuse by their captors, while Muslim houses and apartments in Foea and neighboring municipalities were looted, destroyed and burnt down, as more particularly set out below:

1. On 3 July 1992, a number of soldiers Wlder the command of the Accused Goiko Jankovic, brought a captured elderly man Redia Pekaz from the village of Tro~anj in front of huts at Buk Bijela where he was beaten and the other detainees and the Accused Gojko Jankovic himself could hear his screams; then they took him near the bank of Drina River and shot him dead. .

5 PURL: https://www.legal-tools.org/doc/fac09f/ 2. In the period from 7 April to early May 1992, together with Janko Janjic, Ljuban Kalajdzlc and an unidentified soldier, Gojko Jankovic came to B. Muslim house in Fo~a occupied by the protected mtness E. where she was forced to sexual intercourse in that she was being held by the suspect and the unidentified soldier while Janko Janjic raped her; and then on IO to 15 closely sm;ceeding but unkno\Vl1 dates between late April 1992 and late May 1992 Gojko Jankovic, Janko Janjic and the unidentified soldier came to her house and on each occasion Gojko Jankovic raped protected Mtness E who was also raped on many of those occasions by Janko Janjic or the unidentified soldier, or by both of them; and in late May 1992 Gojko Jankovic, Janko Janjlc and the unidentified soldier deprived protected \\-itness E of her liberty by forcefully taking her to Partizan Sports Hall in FoCa where she remained in detention for several wceks together with other women including Witness J, and where she saw Gojko Jankovic on further occasions, and was also raped once by a soldier she did not know.

Wbereby he would have committed the criminal offence of Crimes against Humanity under • Article 172 (1) CC of Bill, items a) and f) as read with Article 180 (J) CC of BiB, and items eJ, f) and g), as read with Article 180 (2) CC of BiH, under Count I and Count 2 of the acquitting part of the operative provision, respectively.

1. Transfer of cases from the ICTY

Under thc amended Indlctment of the teTY, case no. IT-96-2312-1, dated 5 October 1999, Gojko Jankovic was accused of Crimes against HlllmrUty referred to in Article 5 (t) of the Smillte of the Tribunal and the violation of la\\'S and customs of war referred to in Article 3 (1) item a) of the Geneva Convention, which, according to the allegations of the indictment, he committed in the territory of Foca Mlmicipality. He voluntarily surrendered to the R~publikH Srpska authorities on 13 March 2005, whereupon on 14 March 2005 he was transferred to the ICT'{ detention.

On 22 July 2005, in keeping with Rule Ilbis of the TCTY Rules of Evidence and Procedure, the ICTY Referral Bench decided to transfer the case Prosecutor vs. Gojko Jankovic to the al)thoritics of the State of Bosnia and Herzegovina. On 15 November 2005. this decision • was confirmed and on 8 December 2005 the Accused Jankovic was transferred to the authorities of Bosnia and Herzegovina and handed over to this Court for further proceedings.

On 8 December 2005, the Prosecution filed to the Court a Motion for ordering custody against the Accused in accordance with Article 135 (1) CPC of BiH in conjunction with Article 132 (1) items a), b) and d) oftbe CPC of BiH. In his decision of 8 December 2005 the Preliminary Hearing Judge of this Court did not accept the Motion for ordering custody and decided that the custody ordered against the Accused at the order of the ICTY Trial Chamber, which commenced from 14 March 2005, shall remain in force pending the decision of the Court of BiH on acceptance the adapted Indictment of the Prosecutor's Office of Bosnia and Herzegovina.

PURL: https://www.legal-tools.org/doc/fac09f/6 In the implementation of the decision of the ICTY Referral Bench, ha"ed on Article 2 (1) and (2) of th~ Law on the Transfer of Cases from the ICTY to the Prosecutor's Office of BiH and the Use of Evidence collected by ICTY (Law on Transfer) in proe~~dings before the Courts in BiH, and Article 35 (2) (h), Article 226 (1) and Article 227 CC of BiH, in accordance with the Counts of the amended ICTY Indictment and the facts mentioned therein, the Prose<:utor's Office of Bill fJ..led the adapted Indictment on 14 February 2006 which is also amended by adding Counts 1, 2, 4, 7 and 8.

Under the adapted and amended Indictment No. KT-R3-163/05 dated J 4 February 2006. the Prosecutor's Otnce of Bill, Section I for War Crimes accused Gojko Jankovic of the perpetration of the criminal offence of Crimes against Humanity in violation of Article 172 (1) items a), c), d), e), t) and g), in conjunction with Article 180 (I) and (2) of the CC of BiH, c.ommitted at the time and in the manner described in detail in the tiled Indictment, in Counts I through 9,

On 20 February 2006, deciding on the filed Indictment, the Preliminary Hearing Judge of the Court of BiR accepted Counts 3, 5, 6 and 9 of the Indictment and confinued its Counts • I, 2, 4, 7 and 8.

On 16 March 2006, the Accused pleaded not guilty on any Count of the Indictment.

On 27 hme 2006, the Prosecutor's Office of Bosnia and Herzegovina filed another Indictment against the Accused Oojko Jankovic under No. KT-RZ:43/06, charging him with the Crimes against Humanity in violation of Article 172 CC of BiH, specifically torture and rape, which also occurred at the material time and place, referred to in items e) and f) of Article 172 (1) CC ofBiH.

On 4 July 2006, the Preliminary Hearing Judge of the Court of BiH contlnned this Indictment. On 18 July 2006 the Accused Gojko Jankovic pleaded not guilty as charged.

Deciding on the Motion of the Prosecutor's Office of BiH to joinder the proceedings concerning these two rndictments, having heard the parties, the Court rendered a decision on 3 August 2006 on joinder of the proceedings, whereupon the proceedings against the • Accused Gojko Jankovic continued jointly according to both Indictments. The Court rendered such a decision having in mind the provision of Aniele 25 CPC of 8iH. primarily the reasons of cost-effectiveness of the proceedings and the right of the Accused to have trial within reasonable time and the fact that the Accused didn't object to the joinder of the proceedings.

2. Presented evidence

During the main trial, presented were pieces of evidence of the Prosecution and the Defense, as well as those presented upon the order of the Court.

Upon the Motion of the Prosecution, in addition to the witnesses whose identity wa~ revealc:d, examined were also the witnesses on whom certain identity protection measures were applied, and they are mentioned in this Verdict under pseudonyms. The Prosecution

7 PURL: https://www.legal-tools.org/doc/fac09f/ also presented physical evidence, the admission of which was considered by the Court on individual basis.

The follov.mg witness were examined: y{itnesses WIder pseudonyms FWS· 75, FWS-74, FWS-87. FWS-96. FWS 88, FWS-95. FWS-191, FWS-175, FWS-190, FWS-I92, DB, B, C, D, E and J, as well as witnesses Enes Hrnjitic, Gordana 19ric, Jusuf tolpa, Ferids Glu§ac, Habiba Music, ZDi, Dr. Nuredin A~ceric, whilst Dr. Marijs KOMSIC was examined in the capacity of both an expert mtness and a witness, and Dr. Alma Bravo MehmedbaSic as an expert witness.

Deciding on the Motion of the Prosecution, \\;th the exception of direct presentation of evidence by reading the statements of mtnesses FWS-132, FWS-I0S, FWS-186, AS and ,vitness Zada Cedic, following the submission of the Defense, and based on Article 273 (2) CPC of BiH, the Court decided that, except for the statement of AS, some statements of these witnesses be read, which will be explained in the part concerning procedural decisions • of the Court.

During the main trial, proposed and presented were the following pieces of physical evidence of the Prosecution: a set of 4 photographs of the house in Brdine, List of Detainees in the Penal and Correctional Facility Foc~ Official Letter of the Federation Commission on Mis~ing Persons No. 01-41-2106/2006 dated 3 May 2006, Ollicial Letter of the Federation Commission on Missing Persons No. 01-41-2126/2006 dated 5 May 2006, Official Letter of the Federation Commission on Missing Persons No. 01-41-2020/2006 Jated 27 April 2006, Official Letter of the BiH Ministry of Defense No. 08-04-360-5/06 dated 3 March 2006, a copy of Military Booklet of Gojko Jankovic, Official Note of the investigator of the Prosecutor's Office of BiH No. KIA - RZ-1631OS dated 3 May 2006, niH Census of 1991 - an Excerpt from the Federation Institute for Statistics, Records of Examination of Enes Hmji6c dated 23 August 2005 and 6 January 2006, Records of Examination of the Witness [3 dated 10 August 2005 and 6 January 2006, Video of SBe panorama broadcast, a photograph of Buk Bijela marked by the witness FWS-7S, Records of Examination of the Witness FWS-7S dated 18 November 1995, 6 March 1998,22 October 2003. 30 December 2005, and the transcript of this \vitness' testimony before the e ICTY, Record of Examination of the Witness FWS-88 dated 21 January 1996, Oslobodenje Article titled "The Day when Tro~anj fell down", Record of Examination of the Witness C dated 11 January 2006, Record of Examination of the Witness 0 dated 11 January 2006, Official Letter of the Federation Commission on Mis9ing Persons No. 01-41-55/2006 dated 13 January 2006 on the exhumation conducted in Tro~nj on 2 June 2001, Records of Exhumation - Official Letter of the Cantonal Cowt in Sarajevo No. 009-0-Su-06-000108 dated 25 January 2006, photo documentation No. 17-13/1-7-02/06 compiled by SIP A on 18 January 2006, photographs of the Kamernik hill, lCTY Internal Memorandum dated 22 March 2000 - Official Note on the interview with the witness DB, Record of Examination of the Witness DB dated 11 Octoberthrough 15 October Hnd 6 December 2003, Transcripts of the testimony of the Witness DB before the ICTY, photobrraphs of Buk Bijela, 3 photOgrdph~ of the house in Tmovaca, Record of Exrunination of the Witness FWS-192 dated 4 May 2000, a sheet of paper containing the names of the husband and sons of the witness FWS-96, a photograph of Gojko Jankovic signed by the witness 96 in the ICTY, a sh.eet of paper containing the names of 6 mcn killed on the meadow, a photograph ofBuk Bijela marked by the witness FWS-96, Permit to leave Fo~a issued to the name of witnes~

8 PURL: https://www.legal-tools.org/doc/fac09f/ FWS-96, Records of Examination of the Witness FWS-96 dated 12 February and 13 February 1996, Transcript of the testimony of the witness FWS-96 before the ICTY dated 27 April 2000, Record of Examination of the Witness FWS-190 dated 7 June and 8 June. 1998, transcript of the testimony of the witness FWS-190 dated 16 Yfay and 17 May 2000 before the ICTY, Official Letter of the Federation Commission on Missing Persons dated 5 May 5 2006 - information on Red1:o Pekaz, Record of Examination of the Witness FWS 175 dated 21 August 1997, Transcript of the testimony of the witness FWS-175 before the rCTY dated 18 May and 22 May 2000, NIN Article titled "Guys on the Hague List", by Gordana Igric, dated 23 August 1996, audio tape - Gordana Igric's intervie\\' with Gojko Jankovic, plan - layout of the house in Tmova¢a made by the 'Witness FWS-191, a photograph of the witness FWS-191, letter of the witness FWS-92 addressed to the wirness FWS-191, bulletin-board marked by the witness FWS-95, Record of Examination of the Witness FWS-191 dated 23 September 1998, lCTY Internal Memorandum dated 15 June 1998, Transcripts of testimonies of the witness FWS-191 dated 15 May and I 0 ~1ay 2000. Record ofExftmination of the Witness FWS-95 dated 9 FebruEl.ry through II February 1996 . a sheet of paper on which the witness FWS-95 wrote the name of the person who recognised the Accused in Buk Bijela, a sheet of paper on which the witness FWS-<)5 \.\TOle • the name of the person who was taken to the stadium on 12 August 1992, transcript of the testimony of the witness FWS-95 before the IeIT dated 25 April 2000. Record of Examination of the Witness FWS-74 dated 15 November 1995, Records of Examination of the Witness 87 dated 19 January and 20 January 1996, and 5 December 2003, Transcripts of the testimonies of the witness FWS-87 dated 4 April and 5 April 2000, bulletin-board containing 12 photographs used in identification process, signed by thi! witness E, a sheet of paper on ....mich the witness E wrote the name of another person who WllS in the "Partizan" Sports Hall, Record of Examination of the Witness E dated 27 March 2006, Record of Examination of the Witness E - identitication procedure dated 27 March 2006. Rt:cord of Examination of the Witness J dated 12 June 2006, Record of Questioning the Suspect Gujko Jankovi6, No. KT - RZ -163/05 dated 2 February 2006 made on the premises of the Prosecutor's Office of BiB, ICTY Indictment against the Accused Gojko Jankoyj6, Judgements of the lCTY Trial and Appellate Chambers in the case of Dragoljub Kunarac et al. No. IT -96 -23-T and IT - 96-2311-T dated 22 February 2001 and 12 Junc 2001, Record of Questioning the Suspect Gojko Jankovic, No. KT - RZ -43/06 dated 17 April 2006 made on the premises of the Prosecutor's Office of BiH, Letter recommending Gojko Jankovic's • aPJXlintment as "Vojvoda" No. 011705 -1 dated 13 August 1993, Video recording of interview with Miroslav Starue and transcript of the recording, lnfonnation report on activities of Srbinje Police:: Station from April 1992 to April 1994, made in June 1994, certified excerpts from the records of the Republika Srpska Ministry of Labour .and Veterans' Issues, Records of Exhumation and Autopsy of Red10 Pekaz. Order of the Army Post Ofl:1ce 7141 Fo~a dated 28 October 1992, Order of the Foca Tactical Group Commnnd dated 30 June 1993, a sheet of paper containing the maiden name of the witness E. [j photograph of the bar nm by Gojko Jankovic during the war, VINS magazine Article, Ofticial Letter of the Supreme Prosecutor's Office of the Republic of Montenegro No. KRZ:2/06 dated 15 December 2006 - Receipt of the General Hospital in Kotor, Statement of Milica Jankovic given in the Public Security Station in FocalSrbinje on 13 December 2004 under number: 13-1-8(4)/02-230, statement of the witness FWS-l05 given to Dr. A~ceri6, statement of the witness Wi given to the Sandiak Committee on Human Rights, statement of the witness FWS-48 given to the Sandzak Committee on Human Rights. a photograph of the "Fota group" patients of Dr. A~terj6, n photograph of Dr. tdcerk, with

9 PURL: https://www.legal-tools.org/doc/fac09f/ colleagues, statement of Dr. A~terie, Decision of the Public Security Station F o~a dated 26 June 1992 that witness Zada L:edic leave Fota, Record of Examination of Witness Habiba :\1usic, No. KT -RZ~163/05 dated 22 December 2006, findings on expert analysis and opinion of Dr. Alma Bravo Mehmedbasic, Statement of witness Ferida Gl~ae given before the ICTY, report of P. Koulischer, statement of the witness FWS~96 - excerpt from the report of P. Koulischer, military records for the Accused Gojko Jankovic, Agreement on Admission of Guilt made between Dragan Zelenovic and the ICTY Office of the ProstX':utor, interview of Dmgoljub Kunarac given before the ICTY, transcript of the testimony of Dragoljub Kunarac before the ICTY, letter of the Foc.a Municipality General Administration Section No. 04-835/4 dated 22 January 2007.

The Defense adduced the following Yfitnesses at the main trial: Papovie Ljubinka, Papovic Milomir. Paprica Anda, Paprica Milo~. Paprica Milenko, Pavlovic Zoran, ~u~njevic Radmila. Pavkovic Branka, Kulie Sanja, Todorovic Mirjana, Zivanovic Zorica, Kalajdiic Ljubomir, Miletic Ljubomir, ~ip6c Mitar, Pavlovic Bogdan, Elezovic Stevo, Partalo Bo!iko, • Arsenic SIlVO, Kovatevic Soniboj. Dostie Ljubomir, Smrekie Zoran, Milomira Acimoviea, Pctar ACimovic, LazareviC Mladen. Calasan Ilija, Paprica Dragan, Tomovic Radmilo, Pljevalj~ie Milan. Rangelov Stamen, and the wife of the Accused, Milica Jankovic.

The Defense also adduced the following documentary evidence: Witness examination r~cords composed by attorney Milan Trbojevica, Defense Counsel for the Accused, as follows: statement of Brunk. Pavkovic dated 24 July 2006, Sanje Kulic dated 26 July 2006, Milomir Acimavic dated 8 January 2007, Ljubomir Dostie dated 28 October 2006, Mirjana Todorovic dated 28 October 2006, Zoran Smrekic dated 24 July 2006, Milan Pljevalj~ic dated 24 July 2006, Zorica Zivanovic dated 29 October 2006, Dragan raprica dated 10 December 2006, Radmilo Tomovie dated 10 December 2006, Milenko Paprica dated 10 December 2006, !lija Calasan dated 24 July 2006, Bogdan Pavlovic dated 25 July 2006, Stamen Range1av dated 28 October 2006, Bo~ko Partal dated 24 July 2006, Ljubomir Kalajdzic dated 26 July 2006, Mitar Sip6ic dated 26 July 2006, Stevo Elezovic dated 25 July 2006, Sava Arsenic dated 24 July 2006 and Milica Jankovic dated 27 December 2006, and also the Decision for Milenko Paprica, reference number 04-589-625101 dated 17 July 2002. copy of Gojko Jankovic's military booklet, Otlicial letter of the Defense .Ministry • number 08~04-188~1/06 dated 1 November 2006, a birth certificate for Marko Paprica, Certificate for Slobodan Jankovic dated 2 November 1992, Official letter of the Basic Cc>urt in Herceg Novi number: Su ~23/06 dated 14 September 2006 with the enclosed copy of the portion of the criminal case file, Certificate for Radivoje Vasiljevic, number 05~1/365 Jated 11 April 1993, Certificate for Milenko Jojic, number 05~ 11366 dated 11 April 1993, Decision on pennanent closing down of STR minimarket "Lala'" number 02-Up/1-570~92 dated 6 July 1992, issued by the relevant section of the to\VT1 hall of Herceg Novi, Discharge sheet for Gojko Jankovic number 2505n80, OfIicial letter of the Veterans Organization number Ot ~ 70/06 dated 21 December 2006, medical findings of a specialist cardiologist and thoracal surgeon, issued to the name of Gojko Jankovic dated 7 October 1996, Certificate on Disability number 03-2-560-354-1/99 dated 19 June 200l.

On the basis of Article 239 (2) in conjunction with Article 261 (I) item (e) of the epe of UiH. and during the main trial the Court ordered the presentation of the following documentary evidence: List of persons who left the Foea municipality in August 1992 in Osanica - 61 adults t 17 children, copy of the military booklet for the witness Mi10mir

10 PURL: https://www.legal-tools.org/doc/fac09f/ A6imovic, a note book containing records kept by the witness Mitar Sipeic at the FoCa High School, a copy of the military booklet for Petar Acimovic, and an official tetter sent to the Hospital in Kotor (Montenegro) on 22 January 2007.

3. Closing arguments; a summary.

B. Prosecution

The Prosecution (for the full text of the closing arguments, see the annex) considered that a ...... -idcspread or systematic attack by the Anny of the Serb Republic of Bosnia und Herzegovina, members of the Police and paramilitary fonnation targeting the non-Serb civilian population in the wider area of the Foea municipality at the time relevant to the Indictment existed. Tills arises from the adjudicated facts from the ICTY Judgments accepted by the Court in its decision of 4 August 2006, and it is supported by the testimonies before the Court. The Prosecutor considered the knowledge of the Accusl!d concerning the existence of a widespread or systematic attack proven ~jnce evidence hilS shown that the Accused was the leader of a platoon acting within the Foe8 Brigade of the • Anny of the Serb Republic of Bosnia and Herzegovina and, in such capacity, was attending meetings of the Crisis Committee on an almost daily basis, from which it follows that he must have b-een fully aware of the existence of the attack. The Prosecutor stated furthennofc that the acts of the Accused were part of the anuck and that he knew that his acts were part of the attack, since it is apparent that the acts of the Accused, by their narure, by the choice of the victims and by the consequences for them, objectively constitute an indissoluble part of the broader attack.

Before addressing each Count of the Indictment separately. the Prosecutor went into severnl claims that ensued from the Defense witnesses and explained why these claims arc "untruths": the soldier~witnesses that claimed that the Accused only became leader of his Unit after the departure .Mr. Babic; the claim that the Accused left for Montenegro on 3 hlly 1992 by car at 7 AM and that hi.s Unit never was in Trosanj but just waited in a hill nearby and that they only heard shooting in the distance; the guards called by the Deren~ to give the Accused an alibi of non·entry or involvement in Partizan Sports Hall; the claim that one Sretko f)ajic had occupation of the "Tmovace house" during spring, smnmer and autumn of • 1992. The Prosecutor found that the stories matched too well, that witnesses remembered identical things that some lies have been collectively orchestrated and told by several witnesses in concert and thus concluded (the majority of) the Defense witnesses completely unreliable. The Prosecutor furthennore reiterated some documentary evidence supponiog his JXlsilion in relation to the Defense witnesses' testimonies. The Prosecutor also found the testimonies of Radmila Su~njevic. Branka Pavkovic, Sallja Kulic, Miljana Todorovic and Zorica 2ivanovit as not undennining the testimony ofFWS-191.

In relation to Count 1 of the Indictment, the Prosecutor stated that on the basis of the good and convincing testimonies of Enes HmjiCic, Ferida Glu§ac and witness B. it was proven beyond a reasonable doubt that the Accused on 14 April 1992, together with the men in his platoon, unlawfully arrested and took away eight Bosniak men whereby he committed "Imprisonment or other severe deprivation of physical liberty in violation of fundamental

\ J PURL: https://www.legal-tools.org/doc/fac09f/ rules of international law" as well as "forcible transfer of population" as a co-perpetrator pursuant to .<\rticle 29 ec of Bll..1. The apprehension and taking away of the eight Bosniak men was carried out by subordinates of the Accused acting under his direct orders .. He thus made a decisive contribution to the joint perpetration of the criminal offense .. By this single action the Accused violated two different provisions, which is possible since it's a case of ideal concurrence, meaning that both provisions contain materially distinct elements and protect difTerent values.

In relation to thc events of 3 July 1992 on Kremenik, covered by Count 2, stated that the sheer weight of numbers of witnesses who place the Accused on Kremenik Hill and ensuing events rule out mistake in relation to his presence and identity .. In relation to events on Krcmenik Hill the consistent and compelling evidence against the Accused made it unnecessary to rehearse these testimonies in relation to what happened on Kremenik. By his actions the Accused is guilty as a co-perpetrator pursuant to Article 29 CPC of Bill as it was clear that the Accused at least de facto had command and control over the men committing • the crim~s and thus by his acts and omission made a decisive contribution to the perpetration of those crimes on Kremenik and is guilty of murder, tOlture and forcible transfer of population. As a subordinate position the Prosecution submitted that by his acts and omissions the Accused provided support and encouragement that had a substantial effect on the commission of the crime and is therefore responsible as an aider and abettor under Article 180 (I) epe ofBiR

~n relation to the rapes in Buk Bijela on 3 July 1992, covered by Count 3, the Prosecutor stated that his presence and actions can be based on the testimonies of FWS-74 and FWS- 75 and is furthermore suplXlrted by the Plea Agreement signed by Dragan Zelenovic .. According to the Prosecutor, purSllilllt to Article 29 CC of BiH, the Accused is responsible as co-perpetrator of the gang-rape of FWS-7S, since he made a decisive contribution to the commission of gang-rape, because he transferred FWS-7S to an urudentitied soldier with the a!;,rreemcnt that she would be raped after having threatened FWS-75 with gang-rape. As a subordinate position, the Prosecution submitted that the Accused rendered practical assistance and encouragement that had a substantial effect on the commission of the crime, for which he is responsible:ffi an aider and abettor pursuant to Artide 180 (1) CC of BiH. • The Accused is also charged as an instigator pursuant to Article 180 cpe of BiH with the rape ofFWS-87 by Dragan Zelenovic and the rape of FWS-74 by Janko Janjic in Buk Bijela since by thc positions of authority the Accused held and by his words and actions towards f'.VS·75 he gave to the present Zelenovic and Janjic a direct invitation to commit similar crimes.

In relation to the beating and murder of the only male victim in Buk Bijela on 3 July 1992, the Prosecutor stated that it is beyond doubt that Redfo Pekaz was beaten and executed by soldiers in Buk B\je\a and that the Accused was aWlll"e that this was taking place. Despite his awareness, the Accused did nothing to stop the abuse, His failure to act despite his presence at the crime scene, coupled with his position of authority as platoon leader, provided encouragement and moral support to the perpetrators that had a substantial effect on the commission of the crime. The Accused could not fail to appreciate that by his omissive conduct he was supporting the perpetrators and therefore, he is responsible for aiding and abetting the torture and murder of RedZo Pekaz pursuant to Article 180 (1) of the ce ofBiH.

12 PURL: https://www.legal-tools.org/doc/fac09f/ In relation to Count 5, in which the Accused i~ charged with taking from Partizan Sports Hall amongst others FWS-95 on three different occasions and raping her, the Prosl:cutor stated that the testimony of FWS~95 was reliable. Witness 95 managed to identify the Accused on an ICTY photo board as her triple rapist. The third instance of rape, taking place in the Tmovaca house, was furthermore corroborated by FWS-87.

Count 6 charges that the Accused, together with Beban Vasiljevic, took FWS-105 and DB from Partizan Sports Hall to a house in Tmovata (the Trnova~a house) in the municipality of Foea where the Accused raped FWS-J 05 twice, while Beban, Vasiljevic raped female detainee D.B. The Prosecutor stated that even though FWS-l 05 was not heard by the Court. but only a testimony was read in pursuant to Article 273(2) cpe of BiH, this Count was proven. Count 8 mainly relied on testimonies of FWS-87 and FWS-75, who both remember how they together with AS and 12 year old AB were taken from Kamman house. Witnesses FWS-7S and FWS-87 testified in Court that they were raped, FWS-75 by JanjiC and FWS- 87 by Zelenovic. On the basis of these statements, especially FWS-7S. the Prosecutor submitted that the rape of AB by the Accused is proven. In relation to the rape of AS by the • Accused~ the Prosecutor conceded that a reasonable doubt exists concerning witness AS.

The Prosecutor dealt with legal qualification and liability of the Accused for Counts S. -6 and 8 jointly, since they an charge the Accused with rape that he himself perpetrated on FWS-95, FWS-87. FWS-I05, AB and AS. In these Counts, the Accused is furthennore charged as a co-perpetrator in the rapes physically perpetrated by Beban Vasiljevic un FWS-87 and DB, by Dragan Zelenovi6 on FWS-87. and by Janko Janjic on FWS-75. In relation to the rapes physically perpetrated by the others, the Prosecutor stated that for all those incidents the Accused participated in the sel~tion of the girls and their transport to the locations where they were raped jointly with the other co-perpetrCitors. According to the Prosecutor, the concerted actions of the co-perpetrators reveal a mutual understanding that each of them would rape one or more girls. Moreover, the Accused was in a position of seniority with respect to the other perpetrators which aggravates the significance of his participation in these crimes. In relation to the rapes perpetrated by fk'ban Vasiljevic. the Accused contributed by making available the house of Halim Cedic (or the TmovaC8 House) which he occupied at that time. According to the Prosecutor, the Accused thus is • responsible as a co-perpetrator pursuant to Article 29 CC ofBW for the rape.~ committed by the other men, Alternatively, the Prosecutor submitted that the Accused aided and abetted in those rapes pW'suant to Article 180 (1) CC ofBiH. All the acts ofrape in those Counts are also charged as torture. For aU claims the Acclised is charged with both rape and torture (ideal concurrence).

In relation to Count 7 of the [ndictment, the Prosecutor stated that the testimony of FWS- 191 was of excellent quality and corroborated the transcripts of testimonies of witness FWS-186 that were admitted by the Court pursuant to Article 273 (2) CPC ofBiH.I'WS- 186 was not abl~ to testity before the Court. Both witnesses FWS-191 and FWS-186 are furthermore supported by other witnesses. According to the prosecutor, Count 7 of th~ Indictment should be dealt with in three parts. Firstly, sexual slavery of GJ, FWS-191 and FWS-186 at the Truova~a house, amounting to sexual slavery and torture (ideal concurrenc-e). pursuant to Article 172 (1) items n and g) CC of BiH. Since the Accused willfully participated in the joint perpetration of the sexual slavery

13 PURL: https://www.legal-tools.org/doc/fac09f/ !9! and FWS-186 at the Trnova~a house, he is responsible as co-perpetrator pursuant to Article 29 CC of Bil-l. Secondly, the rape ofFWS-191 at the Tmova~a house amOlUlting to rape pursuant to Article 172 (J) item g) CC of BiI-I. In relation to this incident the Prosecutor submitted that it may have lacked the element of prohibited purpose necessary for that rape to qualify as torture and thus the Accused is not also charged v.ith torture. Lastly, the rapes of FWS-186 at Ribarsko Naselije 95 amounting to rope pursuant to Article 172 (I) item g) CC of BiB for which is also the prohibited purpose might have lacked,

Tn relation to the second Indictment, the Prosecutor stated that, if believed tht: evidence shows that on a night around 10 to 15 April 1992 the Accused, together with Janko Janjic, Ljuban Kalajdzic and another unidentified soldier broke into witness E's house and forced her to undress. She was then raped by Janko Janjic while the Accused and the unidentified soldier were holding ber down. After that night the Accused, Janko Janjic and the unknown soldier returned to E's house every night for approximately 10 days, and raped her on each of these occasions. After this. the Accused, together with Janko Janjic and the unidentified man forced \vitness E into a car and they transported her to Partizan Sports Hall. She was detained in Partizan for more than a month until she managed to escape with help of her • . brother in law Ljubis.a Militic. The Accused raped her on all or almost all of these "Occasions. '111ereby the Accused would be guilty of rape and torture (ideal concurrence) ofE and also guilty as a co-pcrpetrator pursuant to Article 29 CC of Bill because of his decisive rontribution to the rapes of E by Janko Janjic and the unknovm soldier. Alternatively, the Accused is responsible as an aider and abettor to the rapes not perpetrated by himself pursuant to Article 180 CC of BiR. The Accuse.d. would furthennore be guilty of co­ perpetration pursuant to Article 29 CC of BiH of imprisonment of E pursuant to Article 172 (1) item e) CC of BiH. The Prosecutor mentioned that the behavior of witness E during cross-examination and her admission, as stated by the Prosecutor during the main trial, when asked by him to confront Defense witnesses Militic and Kalajd.tic, that sbe wasn't sure of her identification of Militic and Kalajdiic may raise doubts for the Court in relation to the second Indictment. On the other hand, the testimony of rebuttal witness Jwmf Colpa contradicts parts of the testimony of the Defense witnesses and supports witness E's testimony according to the Prosecutor.

The Prosecutor ended by proposing a long-tenn imprisonment sentence of not less than 30 years gi.... en the fact that the Accused was leader of his platoon, the escalation of the crimes • :;ommitted by the Accused. the discriminatory motives, the age of his victims, the consequences of his action and circumstances under which the offenses were perpetrated.

b, Defcnsc

The Defense opened his closing arguments by stressing objections against the criminal proceedings against the Acc·used before this Court, stating first of all that the Accused did not receive an equal treatment vis-it-vis the rights of the Prosecution (for the full text of the closing arguments, see the annex).

The Defense objected to the application of CC of BiH, pointing out thattht:: Criminal Code of the Socialist Federal Republic of Yugoslavia (CC ofSFRY), which was applicable at the iime of the events concerned, should be applied as it is clear that the at time when the incident,; covered by the Indictment took place the CC of SFRY was in effect and since it is

PURL: https://www.legal-tools.org/doc/fac09f/14 clear to everyone that the punishments defined by the CC of SFR Yare more lenient to the perpetrator than the punishments defined by the current CC of Ell-I. According to the Defense, application of any other Law than the CC of SFRY, amounts to a violation of the principle oflegality. The Defense referred La Article 7 (1) European Convention on Human Rights (ECHR) and Article 15 (1) of the International Pact on Civil and Political Rights. By applying to the Law on the Transfer and the Law on the Protection of Witnesses under Threat and Vulnerable Witnesses (Law on Protection of Witnesses), this trial, like many other trials, was conducted in accordance with regulations \vhich were not pa.~sed prior to the commission of the acts, which drastically violate the rights of the Accused even contrary to the regulations of the applicable CPC of Bill. Furthennore, the Prosecutor ll~'ed nil privileges prescribed to the detriment of the Accused, through examination of witnesses via video link, reading statements of witnesses who refused to attend the trial making it impossible for the Defense to cross examine the witnesses, by moving to accept as proven facts adjudicated in other final Verdicts and reading statements of witnesses given in proceedings against other persons .

In relation to the presented evidence in general, the Defense stated that the evidence • presented by the Prosecution was not reliable, fabricated and falsified. Funhermore, the Prosecution threatened witnesses presented by the Det,mse with prosecution for war crimes. for false testimony, calling their allegations nonsense etc, intimidated them, expanded th" subject of testimony beyond the domain of the direct examination. \vhile that was harmful for the Defense and unlawful. The Accused, being a private, could not have issued orders for forcible transfer of civiliam and the Prosecution failed to prove that he personally issued the order to open fire or to execute anyone. With regards to the rape charges there is no possibility to cstablish accountability of the Accused on reliable grounds.

With reference to the second Indictment the Defense takes the position that there is no evidence that the Accused committed this criminal offense. The Defense stated and extensively explained why witnesses E and J, on the basis of whose testimonies the second Indictment is based. cannot be considered reliable. Their statements are irreconcilflble with and contradicted by Defense '\'itnesses .

With reference to Count I the Defense takes the position that the Accused did not hold any • command position, did not command open flre, did Dot decide on and take part in the arrest of the villagers ~of the hamlet of Brezine- who where there, did not take part in sending back some of them and then taking them again, is not responsible for the persecution and detention of the villagers from the hamlet of Brezine us the Indictment alleges. All the members of the unit, which was later commanded by the Accused, stated unanimously" that the group of soldiers responsible for the attack of the hamlet Drezine were commanded by a certain Radmilo Babic and not by the Accused in the time period including the incidents of 14 April 1992. Thus, the Prosecution failed to prove this Count.

With reference to Count 2 the Defense takes the position that, although it is not disputable that there was a widespread attack on the villages of Trosanj and MjeSaja on 3 July 1.992 and that the Accused was commanding a group of around twenty soldiers, there is no evidence that this group opened fire on the villagers; there is no evidence that this group of soldiers killed seven villagers from fire weapons and there is no evidence that the Accused was present during the execution. On the contrary, it appears from the testimony of soldiers

15 PURL: https://www.legal-tools.org/doc/fac09f/ that the Accused left early in the morning for Herceg Novi, which was confirmed by his wife who testified before the Court, which was also confirmed by his brother-in-law Milenko Papriea and Ljubinka Papovic who described in a persuasive manner that she had tound the Accused in his sister Borka's apartment, who had been expecting to go into labor. FUr1herm"ore, there is no evidence that lzet Colo, Fadila Odoba~ic and Selima Pekaz, who got killed during the operation while they were hiding in the woods, got killed from the fire of the Accused or his soldiers, nor is there evidence that they were on that particular axis of operation. The testimonies of the Prosecution witnesses FWS-132, FWS-75, FWS-74 and FWS-96 arc tmreJiable, especially in view of the Defense witnesses, all members of the unit of the Accused, who confumed that that morning the majority of them left by a van, that the driver was Milomir ACimovic and they took positions in the field in the early morning hours without approaching the spot where the fire was opened. The Defense stated that as the operation of 3 July 1992 was extt:nsive, this implies that at the least a number of units must have participated since the Accused did not hold any rank.

With reference to Count 3 the Defense takes the position that this COWlt cannot be proven. e The events described in Count 3 took place on the same day, namely 3 July 1992. The Defense stated. that early that morning the Accused immediately after retwning from the area of the villages of Tro~anj and Mjdaja., left for Herceg Novi and thus can not have becn present in Buk Bijela. Furthermore thc mentioned "wtidentitied soldiers" have not proven to be under the effective control of the Accused. In addition, the testimony of FWS-74 was lmreliable. The testimony of FWS-87 in respect to this count can not be relied upon either, amongst others because she was only 15 at that time which requires the pay extra attention to her ulleged recollections. Moreover, this witness stated she was raped in Buk Bijela and that when she was walking towards the bus, her legs were covered with blood but this was not mentioned by her mother, who was waiting for her, or any other witness.

With reference to Count 4 the Defense takes the position that there is no evidence to l;orroborate that a number of soldiers under the command of the Accused killed Redzo Pekaz on 3 July 1992 in Buk Bijela., the same as there is no evidence corroborating that the Accused was present thcre at all and that he knew about the event in any way, and there is no evidence as to the manner in which Redzo Pekaz was deprived ofhls life. The testimony • of witness FWS-75, who claimed that she had been interrogated by the Accused in Buk Bijela, his presence there on 3 July 1992, is unreliable, especially when not corroborated by the testimonies of witnesses FWS-74, FWS-87, FWS-88, FWS-48 FWS-90, FWS-96, DB and FWS-105.

With reference to Count 5 the Defense takes the position that there is not sufficient evidence for the criminal charge that the Accused on several occasions raped witness FWS-95 in the period between 13 July and 13 August 1992, whom he took out of the Partizan Sports Hall. This witness is unreliablc because her testimony has been changed comparing with her previous statement to such an extent that it can not be justified by anything. Also the fact that the medical status of this witness, as described by the forensic neuropsychiatrist, is such that it is no use for any serious establishment offaets.

With reference to Count 6 the Defense takes the position that the there is no evidence that the Ac-cused raped thc witness FWS-l0S in a house in Trnovaca in late July or early August 19.92. The witness FWS-I05 was not heard in the proceedings and, us can be concluded

16 PURL: https://www.legal-tools.org/doc/fac09f/ from the closing arguments, the Court should reject the record on testimony of FWS- J 05 given to Bill Prosecutors Office and the transcript of her testimony at the ICTY. By reading out the statements of this witness at the trial the human rights of the Accused w~re violated.

With reference to Count 7 the Defense takes the JXlsition that the Accused did not participate in the rape of the witnesses FWS-186 and FWS-191, nor did he hold them detained. In the contrary; they begged. him to let them stay under his protection. Furthermore, there is no evidence that the Accused was the person who ordered or-in any other way requested these two witnesses use the non-Muslim names. The several witnesses the Defense offered to the Court are indicative for the fact that the Accused did not rape her. Witness FWS-186 was not heard in the proceedings and there is no excuse for it, thus her statement given to ICTY investigators on 9 May 1998 can not be used tu establish the ~tate of facts. Furthermore, the fact that this statement has no signature affixed makes this statement inadmissible as reliable evidence. Furthermore, the claim by FWS-191 that she was raped by the Accused lacks a minimum reality .

With reference to Count 8 the Defense takes the position that there is no evidence for the • allegation that the Accused on one evening in late October or early November 1992 raped the minor AB and the detainee AS. On the contrary; Defense evidence clearly proved that the Accused was nol at all in Foca or its surroundings ~in late October or ~arly ~ovember 1992~. The statements of the witnesses FWS-75 and FWS-87 with regard to the allegations in the Indictment are unreliable.

4. Procedural decisions

As the case of the Accused Gojko JankoviC was transferred to the Prosecutor's Offtce of Bosnia and Herzegovina pursuant to Law on the Transfer, some of the procedural decisions made by the Trial Panel are directly related to the decisions issued in the proceedings which were conducted in this case before the lCTY. For this reason, the Court intends to provide the reasoning behind its procedural decisions by firstly explaining the decision on the manner of the ex.amination and further protection of the \vitllCSSCS, the majority of who hnd been already assigned the measures of protection of their identity by the ICTY.

• 2. MaDner of el:aminatlon and further protection of witnesses who had already been assigned tbe measure of protection of their identity

Deciding on the Motion of the Prosecutor's Office of BiH, the Preliminary Proceedings Judge of the Court ofBiH issued the Decision dat~d 30 January 2006 ordering that all of (he personal details of the witnesses who had been already identified in other cases before the ICTY should be kept confidential, including the foJlo\v1ng witnesses: DB, FWS-75, FWS- 87, FWS-132. FWS-175, FWS-190 and FWS-191 identified in ICTY, ProsecuLor v.\", Slankovic, case no. IT-96·2312 PT, and witnesses FWS-74, FWS-88, FWS-90, FWS-95, FWS-96, FWS-I05, FWS-186 and FWS-192 identified in lCTY, Prosecutor vs. Kunamc. case no. IT-96-23 and IT-96-23/l).

17 PURL: https://www.legal-tools.org/doc/fac09f/ By its Decision dated 3 February 2006, the Court ordered that the personal details of the witnesses A, B, C and D should be kept c-onfidcntial. As for the protection of the witness E personal data the Court decided by its Decision dated 19 April 2006 and by the Decision datr;:d 19 June 2006 for the v{itness J.

In these Decisions, the Court ordered the Prosecutors Office to be mindful of its obligation foreseen under Article 12 paragraph 8 of the Law on Protection of Witnesses. The Defense was informed on the identity of all of the witnesses who were identified in those decisions, except tor the witness J within the deadline of at least 30 days before the testimony of those witnesses at the main trial. The Defense was finally also informed about the identity of the witness J, although within a rather shorter notice. that is, 15 days before this witness testified at the main triaL

The Court concludes that the Defense was infonned about the identity of the witnesses, as mentioned above, as well as about the protective measures. In his attempt to ensure that the image of those witnesses be protected, the Prosecutor filed a • motion to hear those witnesses behind the screen which would allow for the witness to be seen by thc parties, the Defense Counsel and the Trial Panel, while the public could not see lllm. Thc Defense did not object to the Motion of the Prosecutor's Oftice and thl;! Court decided pursuant to Article 13 (2) of the Law on Protection of Witnesses.

The coursc of the proceedings and the testimony of the above-mentioned \Vitnesses have entirely justified the ordering of such protective measures, which, in tenns of those witnesses, provided them to a significant extent with a feeling of security and put them in the position to testify freely on everything that occurred to them, in relation to Gojko Jankovic and they did testify.

Having in mind all of the above-mentioned, the conduct of the witnesses during their t.estimony in particular, as well as their personally fom·arded requests, at the motion of the Prosecutor, the Court made a decision pursuant to Article 13 (2) of the Law on Protection of Witnesses.

The Court submits that this manner of examination of the witnesses has truly served the • purpose of their protection; whilst the Accused's right to question the witnesses whose testimonies are incriminating him has been also preserved. All of the witnesses, except for those provided hereinafter, testified comprehensibly and freely in the presence of the Accused, and the exceptions were only made with respect to the witnesses E and J, which is going to be explained in the text bellow under paragraph Cd), \\TIereas the witness ZDZ testified through a video-link, and in this way established contact with the Accused during his testimony, although through technical means.

TIle Court has found that there is a justified fear tbat the disclosure of some or all of the personal details of the witnesses would seriously endanger the personal security of the v.itnesses or their families, even after they gave their testimony before this Court. The Court took into consideration the efforts that were put forward just to ensure the presence of the· protected witnesses before the Court, and particularly the fact that every new testimony ~xposes these witnesses to a new trauma and returns them back to the life and the world

18 PURL: https://www.legal-tools.org/doc/fac09f/ they are trying to escape from. Having this in mind, the Court decide.d that the personal details of the witness shall remain confidential for 15 years foUo,",,'ing the day wh~n th~ Verdict becomes final.

b) Adjudicated Facts

On 4 August 2006~ the Court partially accepted the Motion of the Prosecutor's Office of Bosma and Herzegovina No. KT-RZ-163/05, dated 25 April 2006, based all Article 4 of the Law on Transfer, related to the acceptance as proven of the facts established by the !CTY. For elaborate reasoning. the Court refers to its '.'t'f:itten decision of 4 August 2006.

The Prosecutor's Officc moved the Court to take judicial notice of facts established by legally binding decision at the ICTY in its judgments in case no. IT-96-23-T & IT-96-23/l­ T (Prosecutor v. Dragoljub Kunarac e[ a/., Trial Chamber Judgement of 12 June 2002, paragraphs 567, 568, 570-577, 724, 759, 761,765,780); in case no. JT-96-23 & IT-96-23/1- A (Prosecutor v. Dragoljub Kunarac et. al., Appeals Chamber Judgemen1 of 22 February 2001, paragraphs 2-3) and in case no. IT-97-25-T (Prosecutor v. Milm·ad Kmojc!ac, Trial • Chamber Judgement of 15 March 2002, paragraphs 116,118-121).

In totAl the Prosecutor's Office moved the Court to accept as proven 22 facts established by the above mentioned judgments. The parties were heard on 16 May 2006 and during this hearing the Defense orally objected the motion because it wa<; unfounded. The Court accepted 15 facts as proven facts established by the {CTY. The essence that can be summarized as follows:

From 8 April 1992 untll at least February 1993. there was an armed conflict between Bosnian Serbs and Bosnian Muslims in the area of Foea. Non-Serb civilians were killed. mped or othenvise abused as a direct result of the armed conflict. The conflict invol"ed a systematic attack by the Bosnian Serb Anny and paramilitary groups against the civilian population in the ,",,'ider area of the municipality of Foea. TIle campaign was successful in its aim of "cleansing" the Fo~a area of non-Serbs. One specific target of the attack was Muslim women, who were detained in intolerably unhygienic conditions in places such as tht! Kalinovik School. Fota High School and the Partizan Sports Hall, where they were • mistreated in many ways, including being raped repeatedly. FOf the full text of the paragraphs accepted by the Court, sec the annex.

According to Article 4 of the Law on Transfer, the Court may, at the request ofa party of proprio motu, decide to accept as proven facts that are established by legally binding decisions in proceedings before the ICTY. The Court accepted the facts, amongst other finding guidance in the ICTY jurisprudence on to Rule 94(B) of the Tribunal's Rules of Procedure and Evidence (See e.g. ICTY, Trial Chamber, Prosecutor v, Momcilo Krajisnik, case no. IT -00-39-T, Decision on third and fourth Prosecution motions fOf judicial notic.c of adjudicated facts, dated 24 March 2005, p.8; ICTY, Prosecutor v. Zoran Kupreskic e( al., case no. IT-95-16-A, Appeals Chamber Decision on the motions of Drago Josipovic, loran Kupre~kic and VI atka Kupre~kic to admit additional evidence pursuant to Rule 115 and for judicial notice to be taken pursuant to Rule 94(B)). The Court considered the accepted facts, concrete and identiti:able. general in their nature and not attesting the individual criminal responsibility of the Accused. They were furthennore relevant to the case against Gojko

19 PURL: https://www.legal-tools.org/doc/fac09f/ Jankovic since for the criminal case against the Accused conducted before the Court ofBiH, since he is charged with the criminal otTenses that were indeed committed v.rithin the widespread or systematic attack by the Anny of the Serb Republic of Bosnia and Herzegovina, police forces and paramilitary formations against the non-Serb civilian population. conducted in the broader territory of the Faa municipality.

't be Court considered taking judicial notice of facts established by the leTY as achieving judicial economy. Such purpose is in accordance with the defendant's right to be tried without delay as guaranteed by Article 13 CPC of Bill and by Article 6 (1) ECHR. This purpose must nonetheless be reconciled with the principle of presumption of innocence and the def~ndant's right to a fair trial under Article 6 EeHR.

The facts that were not accepted as established by the ICTY were found by the Court to be too specific and too closely connected 'ol.rith the individual factual allegations against the Accused and as such tend to indirectly attest to his criminal responsibllity. For this reason, and in order not to infringe on the defendant's right to a fair trial, the Panel does not admit • thcse facts into evidence as established facts pursuant to Article 4 of the Law on Transfer. Other facts were not accepted as these facts were repetitive and of minor relevance to the present casco c) Exception from imminent presentation of evidence

On 22 June 2006, in the course of main trial, the Prosecutor ftled a oral Motion pursuant to Article 273 (2) CPC of BiB, to move the Court to read in parts of a statement of FWS-132, dated 14 June 1996. In support of this motion, the Prosecutor stated that this witness had testified betbre this Court in the case against Neda Samardiic (Ref. No: X-KR-05/49), as a consequence of which shc \\las severely emotionally affected. Furthennore, thc Prosecutor submined a document signed by Dr. Fadila Filipovic-Mehmedbasic which stated that the \-\litness was SUffering from Post Traumatic Stress Disorder and \vas in such a condition that she was not capable of testifying on this occasion. The Defense did not object to the reasons advanced by thc Prosecutor in favour of reading the statement, however, they did object to only a partial reoding of the statement. Once the parties had reached an agreement on what they ,"anted to have read as evidence at the main trial, the Court accepted this motion by its • decision on 23 June 2006. .

On 21 July 1006 the Prosecution filed a Motion for the exception from the imminent presentation of evidence of the witnesses kno\\l1 under the pseudonyms of FWS-48. FWS- 105. FWS-186 and AS, so that the records on testimony given during the investigative phase, as well as the records of depositions and transcripts of testimony given before the leTY as specified in the motion can be read out and used as evidence at the main trial.

The Prosecution based its Motion on Article 273 (2) cpe of BiH :in conjunction with Article 11 of the Law on Protcction of Witnesses and Articles 5 (1) and Article 7 of the Law on Transfer.

On 3 August 2006 the Defense objected to this Motion arguitlll that Article 6 (3) d of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) prevented the ProsecutioIl from reading to the Trial Panel the evidence of Protected

20 PURL: https://www.legal-tools.org/doc/fac09f/ Rape Witnesses. The Defense insisted that they had the right to cross-examine the witnesses at a public trial in order to challenge the statements in which they incriminated the Ac.cuscd. On the same date the Prosecution v.1thdrew its Motion in relation to the testimonies of \\1tneSs FWS·48.

1n a letter to the Court dated 4 September 2006 the Prosecution replied to the Deti:ns~'s objection.

On 27 September 2006 the Court orally rendered its decision to grant the Motion in part on for reasons as explained below.

Article 273 cpe of BiH provides for the possibility that records on testimony given during the investigative phase can be read or used as evidence at the main trial without examining the persons who gave the statements. This exception from the general rule of the imminent presentation of evidence can be granted if, inter alia, the persons are "dead. aflected by menial illness, cannol be found, or if their presence in Courl is impossible or vr;ry difjicllir • due fo imporlanl reasons". (para. 2). Thi.':l provision is supplement;;:d by Article 11 of the Law on Protection of Witnesses whieh states that the Court, when deciding whether to grant an exception to the imminent

presentation of evidence, w ... shall also take into account the need to provide for { . .} fbe protecfion of a )..'U/nerahle witness who would expose himseV to significant emotIonal distress by appearing allhe main triar

Furth~rmore, in accordance V,1th Article 7 of the Law on Transfer provides for the possibility to likewise read in witness statements given to ICTY investigators during th~ investigative phase. Article 5 (1) of the Law on Transfer provides for the admissibility to transcripts of teSlllnonies of \\1tnesses given before the ICTY and records of depositions of witnesses made before the ICTY, before the Courts in BiH. Nevertheless, tllis shall not prejudice the defendant's right to request the attendance of these witn~sscs for the purpose of cross-examination (para. 3).

It is apparent frOUl a systematic reading of the law that, once these foreign tra.nscripts are • admitted as evidence in domestic BiH proceedings, they must be subject to the ordinary rules of evidence set forth by the BiH CPC including, for the purposes of excepting from the. imminent presentation of evidence , Article 273 (2) CPC orBiB.

The Prose-eution moved the Court to allow to be read and used as evidence at the main trial the following records on testimony as well as records of disposition and tran~r1pts of testimony given before the lCTY:

1. The statement by witness FWS-105 given to the ICTY investigators, dated 9-11 February 1996, the record on testimony given to BiH Prosecutors omc~ all 16 January 2006 and the transcript of testimony at the ICTY in the case against the Accused Dragoljub Kunarac et aI., dated 13 June 2000.

By way of justification, the Prosecution stated that witness FWS-I05 is neither fit nor willing to testify at the main trial, because she remained extremely traumatized

21 PURL: https://www.legal-tools.org/doc/fac09f/ as a consequence of the abuses she suffered during the conflict. She suffers from chronic Post Traumatic Stress Disorder and she is under psychiatric treatment. She also suffers from high blood pressure.

In support of this the Prosecution submitted to the Court medical documentation, Protocol no. 3516/06 from dr. Senadin Ljubovic from the Klinika Centar Univerziteta Sarajevo dated 23 March 2006, as well as two letters concerning information about the witness dated 10 May 2006, 21 and 29 September 2006 by Mss. Jasmina Pusina and Lucia Dighiero of the Witness Support Office respectively.

2. The statement by witness FWS-186 given to ICTY investigators dated 9 May 1998 and the transcript other testimony at the ICTY in the case against Dragoljub Kunarac et aJ. On 4 May 2000.

As a reasoning the Prosecution states that this witness is traumatized as a • consequence of the abuses she suffered during the conflict. She suffers from post traumatic stress syndrome. Hcr mental decease has been diagnosed as stable as long as she is not forced to talk about those events. There have been numerous contacts by the Prosecution (including a personal visit outside of BiH) and by the Witness Support Office, but they have failed to persuade the witness to attend and testify in Court.

In support of this the Prosecution submitted to the Court medical documentation dated 25 April 2006 by Jane Otto, General Practicien at Odense, Denmark, as well as a handv..';tten declaration dated 8 July 2006 explaining her reasons for not testifying.

3. TIu: transcript of the testimony by 'Witness AS in the case against Dragoljub Kunarne et al. on 19 April 2000 as evidence.

As a reasoning the Prosecution stated that he failed despite numerous efforts both by the Prosec.ution and tbe WSO, to get in contact ...... ith witness AS, who resides in • another country. Furthermore, members of her family have not cooperated with the Prosecution in contacting her, and have informed the Prosecution that she is seriously ill.

As can be concludt!d from the previous, the position regarding the witness FWS-I05 (affected by mental illness), witness FWS-186 (affected by mental illness) and AS (cannot be found), fulfill the general requirements of Article 273 (2) CPC of BiI·I. The Law on Transfer is a lex specialis, and is designed. to avert the risk that the CPC might make ICTY evidence unusable. Lex Jpeclalis amounts to special rules which pre:-empt the CPC as to evidence collected by the ICTY and rules on admissibility and use. As lex specialis, as relevant to the proffered evidence 1.mder discussion, the Law on Transfer either derogates from and pre-empts the CPC of SiR where it is inconsistent or reverts to 1he CPC of BiH to c.Qver those issues not specifically addressed by the Law on Transfer (Sec also the Decision of the Court of Bill, dated 4 December 2006, case no. No. X-KR-OS/24). The Law on Transfer, under the requirements as set out in its provisions, explicitly allows this Court to consider material collected by the ICTY. As long as these rules are complied ~ith. the Court

22 PURL: https://www.legal-tools.org/doc/fac09f/ may use the evidence as it would if the evidence were offered according to the CPC ofDiH. But even if the evidence is permitted under the CPC of BiH or Law on Transfer. it is still subject to evaluation by the Court for fairness, reliability, authenticity, and probity as defined in the overriding requirements of the European Convention, which is directly applicable before this Court.

The Court's task under the ECHR is to ascertain whether the proceedings in their entirety (taken as a who/e), including the way in which evidence was taken, were fair. Article 6 (lJ ECHR which guarantees the right to a fair trial and Article 6 (3) ECHR that provide~ the right to confrontation and production of \','itnesses are the relevant provisions of the ECHR relating to the admission of evidence. The Law on Tranter does not remove the obligation of the Court to assW"c fairness in the proceedings to the Accused. Article 6 (3) d ECHR provides in relevant part that the Accused has the (minimum) right to examine of have examined witnesses against himJher, and to obtain the attendance and examination of witnesses on his/hers behalfundcT the same conditions a." witnesses against him/her . In the European Court of Human Rights's jurisprudence it ha<; been established that principles of fair trial include the right of the Accused to be confronted with witnesses and • evidence against him at a public hearing, and a meaningful right to challenge the evidence and cross examine the witnesses (see amongst others, Barbera, Messegue and .k/hargo v. Spain, judgement of 6 December 1988, Series A vol. 146, parR. 78, Asch v. Aus(ria. judgement of 26 April 1991, Series A no. 203, paragraphs 26·31, Ludi v, Swi(serlrmd, judgement of 15 June 1992, Series A no. 238, paragraphs 43-50 and Luca v. ltaly. judgement of 27 February 2001, no, 33354/96, paragraphs 39-45),

As can be concluded in principle, all evldence relied on by the prosecution must normally be produced in the presence of the Accused at a public hearing with a view to adversmial argument. However, the use as evidence of statements obtained at the stage of the police inquiry and the judicial investigation (in the same case) is not in itself inconsistent with Ankle 6 (3) d ECHR, provided that the rights of the Defense have been respected.

As a ruJe these rights require that the defendant be given an adequate and proper opportLmity to challenge and question a witness against him eilher when he was making his statements or at a later stage ofthe proceedings (see, amongst olhers, the Delta v. France • judgement of 19 December 1990, Series A no. 191, para. 36 and the Windisch v. AlIsrria judgement of 27 September 1990, Series A no. 186, para. 26). However, Article 6 ECHR does not grant the Accused an unlimited right to secure appearance of witnesses in Court. Problems will therefore arise if the Prosecution introduces written statements by a person who does not appear as a witness at the main trial and the Defense wants to cross·examinc the witness. Only exceptional circumstances 'Nill permit the prosecution to tender into evidence statements from the witness that the Accused has been unable to cross examine. The general principle is therefore that the Accused persons must be allowed to call or examine any witness whose testimony they consider relevant to their case, and must be able to examine any witness who is called, or whose evidence is relied on, by the Prosecutor,

The European Court of Human Rights will review whether the use of evidence accepted in violation of the rights of the Accused deprived him of a fair trial. In case the testimony of a witness is either solely or to the decisive extent the sole basis ofa conviction ofthe Acclised and neither at the stage of the investigation nor during the trial the applicant was

23 PURL: https://www.legal-tools.org/doc/fac09f/ (cross-)examine or have examined the witness concerned, the lack of any confrontation will deprive him in ccrtain respects of a fair trial (see amongst others, the Saidi v France judgemcnt of20 September 1993, Series A no. 261-C, para. 44).

Article 3.2. Law on Tranfer is in line with this: 'The Courts shall not base a conviction of a person solely or to a decisive extent on the prior statements of witnesses who did not give oral evidence at trial. ' Written or transcribed statements of testimony of lay and expert y,'itnesses, absent cross examination of the witness by the Accused in the Court, at the best, can only be used to corroborate other direct evidence of guilt, The Law on Transfer leaves it up to the Court to decide whether the witness should be proouced for cross examination, In the TCTY, which uses the \Vlitten statements or transcript of a previous testimony of a witness into evidence in lieu of compelling the witness 10 attend the trial and present the evidence orally, under Rule 92bis of the Tribunal's Rules of Procedure and Evidence (Admission of Written Statements and Transcripts in Lieu of Oral Testimony, as adopted 1 December 2000 and 13 December 2000 and amended 13 September 2006), requests for cross examination must be specific as to the • particular parts of the prior testimony or statements about which the Defense intends to cross examine. Rule 92 bis also allows the admission of transcripts of testimony from \\itnesses apJAaring before other lCTY chambers, although the admission of a testimony is only allowed as long as it does not go to the acts and conduct of the Accused as charged in Ihe Indictment. From Rule 92ter ensues that if the Prosecutor does want to submit a transcript from other ICTY proceedings that goes '10 proof of the acls and condUCI of the Accused as charged in the Indiclment' the witness has to be present in Court; the witness must be available for cross-examination and any questioning by the Judges and the witness attests that the written statement or transcript accurately reflects that witness' declaration and ,vhat the witness would say if examined.

The Court furthermore notes that none of the evidence collected or uscd by the ICTY needed to comply with the European Court of Human Rights (see ICTY, Prosecutor \'. Duslw Tadic (1T-94-1), Decision on the Prosecutor's Motion Requesting Protective Measures for Victims and Witnesses, dated 10 August 1995, para. 27).

The Prosecutor moved the Court to admit under Article 5 (1) of the Law on Transfer transcripts of witness testimony from an ICTY proceeding in which the Accused was • directly Accused of crimes as charged in the Indictment, while the possibility to cross­ examine was not available. Even under the lighter standards of the ICTY, the Ylitness must be present for cross-examination.

In order to allow the Accused to cross-examine the witness FWS-I05, FWS-186 and AS, ,""hose testimony the parties consider relevant to the case or whose evidence is relied on by the prosecutor, the witnesses were summoned to the Court,

On 4 September 2006 witness FWS-105 was summoned to the Court on 26 September 2006. However she did not appear. On 27 June 2006 Witness FWS-186 was summoned to the Court to appear on 19 July 2006, This summon was forwarded to her tluough the diplomatic channels to the local foreign authorities, because she resides in another country. The Court has been intonned by these authorities that v.'itness FWS-186 has received the summon, but she did not appear at the trial to testifY. On 27 June 2006 Witness AS was

24 PURL: https://www.legal-tools.org/doc/fac09f/ summoned to the Court on 3 August 2006. She did not appear and the Court got no information from the foreign authorities whether she received the SUlllOlon, AU attempts from the Prosecution to get in contact with this ""itness failed. Furthermore, members of her family have not cooperated with the Prosecution in contacting her.

Now, the compatibility 'hith Article 6 (3) d ECHR comes into question. From the abovementioned jurisprudence from the European Court of Human Rights, it appears that in order for a statement given in the investigative phase of the proceedings to be accepted, thc Court must have done everything possible: to ensure attendance. This has been the -case. Crucial furthennore in this assessment is the question whether the relevant testimony will be the sale evidence for a possible conviction for a specific count in the Indictment. In relution to witness AS, who is claimed to be raped by the Accused, this requirement has not bf!en met and thus should not be read into evidence.

The Court notices further that facts in the case against the Accused are unique in the sense that the Prosecution wants also to be accepted as evidence records on testimony as well as the records of depositions and transcripts of testimony given before the ICTY in other cases: • the case against Dragoljub Kunarac et.al. (Case no. IT-96-13-I).

On 26 June 1996 tbe ICTY confinned an Indictment against Dragoljub Kunarac, RadomiT Kovac, loran Vukovic, Dragan Gagovic, DragAn Zelenovic, Janko ,Janjic, Radovan Stankovic and the Accused (Case no, IT-96-23-1), The Indictment charged rape and torture as crimes against humanity, torture as a grave breach and as a violation of the laws and customs of war and enslavement as a Crime against Humanity.

Following the death of Dragan Gagovic, on 30 July 2999 and Janko Janjic, the Prosecutor withdrew the Indictment against them,

Kunarac was severed from the original indictees in an amended Indictment, confinned on 19 August 1998. On 3 September J999, a second amended Indictment was confirmed joining Kunarac and Kovac following the latter's detention, A third amended Indictment was confinned on 1 December 1999 (Case no. IT-96-23). On 10 February 2000 Vukovic requested ajoint trial wi.th Kunarac and Kovac. This request was gr4nted by the ICTY Trial • Chamber on 15 February 2000. It can thus be concluded that testimonies given before 19 August 1998 were given 'in the investigative phase' of the case against Dragoljub Kunarac and others (including tbe Accused). In other words, evidence records on testimony as well as the records of depositions and transcripts of testimony given before the ICTY in the case against Kunarac and others after this date have to be considered to be given in another c-use. The Court notices that in this case (against Kunarac, Kovac and Vukovic) the charges are strongly interrelated with the cas-e before this Coun against Gojko Jankovic. The Accused Kunarac., Kovac and Vukovic de jure had the opportunity to cross examine during the lCTY main trial testimonies of the witnesses and may have tried to exculpate themselves and by that put the burden on other persons involved, among them the Accused Gojko Jankovic. This causes in itself substantial doubt on its reliability and the overall faimess and brcaches ECHR standards. Furthennore, ns lon~ as the case also included th~ Accused Gojko Jankovic, he had his rights as an Accused and had the possibility to contradict statements

25 PURL: https://www.legal-tools.org/doc/fac09f/ !:lod present rebuttal evidence. Likewise, the evidence goes to the criminal acts of the Accused himself and as such will be relied upon by the Court, unless first put to the test of cross examination. Article 7 of the Law on Transfer does not change this.

It follows from the previous that in relation to the transcript of testimony at the ICTY in the case against the Accused Dmgoljub Kunarac et aI., dated 13 June 2000 by witness FWS- 105; the transcript of testimony at the ICTY in the CH!le against Dragoljub Kunarac et al. on 4 May 2000 by witness FWS-186 and the transcript of the testimony by witness AS in the case aguinst DragoJjub Kunarac et a1. on 19 April 2000 can not be accepted as evidence.

Mutatis mutandis it follows that the other aforementioned statements can be considered given in tbe 'investigative phase' of the case against the Accused at ICTY (statement of witness FWS-I05, dated 9-11 February 1996, and the statement ofwiwess FWS-186 dated 9 May 199&) and at the Court (the record on testimony of witness FWS-I05 given to BiB Prosecutor's Office on 16 January 2006), Furthermore, the Court did everything to secure the presence of the witnesses and there is a legitimate reason for the absence of the • witnesses. The Court is also satisfied that these statements are corroborated by other evidence, us the statements of DB, FWS-96 and FWS·74 in relation to FWS-I05 (Item 5 of this Verdict) and the statements of Sanja Kulic, FWS 190 and FWS·19l in relation to FWS- 1&6 (Item 6 of this Verdict). Thus, the Court accepted the statement by witness FWS-I05 given to ICTY investigators dated 9-11 February 1996, her statement given to B1H Prosecutor's Office on 16 January 2006 and the statement by witness FWS-186, dated 9 May 1998 to be read and used as evidence at the main trial. d. Removal of the AccDsed from the Courtroomj el:Clusion of the public from (a part \=10 the main trial and questioning of the witnesses throua:b a video link

Although the earlier part of the proceedings was partially exeluded for the public, which is explained in the further paragraphs, the Court shall start with the reasoning of these procedural decisions from 31 August 2006, when the decision to remove the Accused from the Courtroom was also made in addition to the decision to exclude the public from (a part of) the main trial. _

On 31 August 2006, before bringing in to the stand the witnesses planned for that date, the Prosecutor orally filed a motion to hear the witnesses E and J by use of the technical devices for transferring the voice of the witness, whilst the image would only be visible to the Trial Panel.

The Prosecutor based his motion on the fact that those were very vulnerable witnesses who were testifying for the first time on what had happened to them, adding that neither their close relatives are familiar with what their hardships, stressing that nobody knew that they were summoned to testify as witnesses before the Court of BiR. The Prosecutor also submitted that their appearance before the Court was very uncertain, as the witnesses were of such mental state where the testimony would be an extremely traumatic step for them to make, which can be con tinned by the Prosecutor's Oflice staff members who conducted an ioterviev.. · with the \vitnesscs as well as the employees of the Witness Protection Department, who composed an official note on the condition of these witnesses. To this end, the Prosecutor reminded that witness FWS-74 was anxious and distressed and she could not

26 PURL: https://www.legal-tools.org/doc/fac09f/ even tell how old she was in 1992. The Prosecutor put forward the motion in order to prevent that the same happens to the injured parties, \vitncsses E and J, who arc the only Prosecution witnesses in the additional Indictment against the Accused Gojko Jankovic.

The Defense counsel for the Accused, and the Accused himself, were entirely against such a manner of the examination of the witnesses stating that the only reason for their refusal of confrontation with the Accused was the untruth that they were to tell about him.

The Panel, trying to reach a comprise, offered an option in which the witnesses would give evidence in the Courtroom with the exclusion of the public, and the Accused taken to a different room in which he would receive the sound of the testimony through audio equipment, and he would be granted the opportunity to consult with his Defense counsel after the direct examination in order to conduct the cross-examination of the witnesses,

In the present case, the Court decided as follows:

Although a public hearing is an essential feature of the right to a fair trial, the Court, • pursuant to Article 235 epc of Bill, has the discretion at any time, cx ofticio or on motion of the parties and the Defense attorney, after hearing the parties and the Defense attorney, to exclude the public for the entire main trial or a part 'to protect the personal and intimate life of the Accused or the injured or to protect the interest ofa minor or a witness.

The witnesses were women-injured parties who will testify about rapes and/or Dlher humiliating treatment of which they were victim(s). Some of them were at the time when the crimes were committed under-aged and some of the witnesses even today suiTer psychological and physical problems as a consequence of the crimes perpetrated against them. Since then they have tried to build up private, family and social life.

Testifying in public about such delicate and trawnatic matters, even v.lith identity protective measures, is a risk to personal and intimate life of thc witnesses, since there was a reRl risk that their identity would be revealed by the substance of the testimony from and about Them. even if technical devices were used to distort their appearance and voice during the • testimony. Moreover. it was very likely that the witnesses could give names of persons who were linked to the criminal offences of rape and sexual slavery and some of those persons could be prosecuted. In addition, it was also likely, and this proved to be justified in the course of the proceedings, that the witnesse~ would mention the full names of other victims who were protected witnesses in the present case heard by the Court under respective pseudonyms.

Having heard the submission of the parties on all proposed options with regard 10 the examination of these two witnesses, the Panel pursuant to Article 235 CPC of Bili decided that the public be excluded during the testimonies of witnesses E and J, with the primary aim to protect their personal and intimate life. If these witnesses were to give evidence in public, taking into consideration when and where the events on which they spoke took place. those generally known facts about the sufferings in Foca would casily lead to the disclosure of their identity which could be devastating not only for them but also for their families.

27 PURL: https://www.legal-tools.org/doc/fac09f/ In order to provide further protection to those witnesses the Court pursuant to provision of Article 10 of the Law on Protection of Witnesses rendered decision that the Accused be rr;:mo'.ed from the Courtroom during the examination of those witnesses. At the same time the Court decidt:d that the Accused be allowed to follow their lestimony through means for transferring sound. so that after the direct examination he could consult his Defense attorney regarding the cross examination.

By applying such a method of hearing the witnesses, the right of the Accused to examine the witnesses against him has been fully honoured and the fact that the Accused only heard, but did not sec the witnesses while his Defense attorney had both possibilities, in no circumstElllces, according to the Court, reduces his opportunity to prepare the Defense, that i$, cross examination. Such a decision of the Court did not violate the right provided for in Article 6 (3) Cd) ECHR.

As mentioned in the introductory texl, the Court issued decision to exclude public even in e the earlier stage of the proceedings, but only in part which refers to examination of witness FWS-75 when with a view to identifying the Accused by this witness a video recording, made in Gennany by the end of 1993, which clearly shows the witness FWS-75, was presented in the Courtroom. The name of the .....itness FWS-75 is mentioned in this recording. Since it did not want to endanger the 'Nitness by public presentation of this piece of eviuem:.e and upon the motion of the Prosecutor and with the approval of the Defense and with the intention to protect personal life and life of witness family the Court issued decision to ex.clude public in part pertaining to examination of the witness FWS· 75 which involved the presentation of this part of the video recording. Once the presentation of this material piece of evidence was completed the trial was re-opened to public.

Pursuant to provision of Article 236 (2) CPC ofBiH the ex.clusion of public did not apply to representatives of the OSCE, whose function it is to monitor the proceedings to assure that they comply with international standards of human rights. Likewise public officials were never exc 1uded from any part of the trial.

At the very close of the evidentiary proceedings, in decidlng upon the motion of the Prosecutor's Oftice tiled pursuant to provision of Article 261 (2) (c) CPC of BiH on 15 • January 2007 that referred to presentation of evidence to rebut the allegations of the Defense, and after the decision to admit tendered evidence the Court also decided that the pn1posed witness ZDZ be heard through the technical means for transferring image and sOlmd, so on 26 January 2007 there was a video link established with Denmark, where the witness was along with the appointed legal adviser and other staff of the relevant Court in Denmark. The Court made such a decision having in mind that it was the witness who is not a direct witness against him or against the actions of the Accused Gojko Jankovic, but the witness whose testimony wants to be lliied to rebut the statement of one of the v.itnesses for the Defense. Having in mind the circumstances that this \vitness was summoned to testify about and which arises from the aforementioned motion and the fact that the Prosecutor did not tind those circumstances to be critical for the charge against the Accused, summoning of the witness to testify directly in the courtroom would, apart from the high costs of appcarance before the Court, would represent the additional mistreatment of the witness. Thus, the Court found that that was not necessary and decided to conduct examination by

28 PURL: https://www.legal-tools.org/doc/fac09f/ video link. The decision was issued pursuant to Article 86 (6) CPC of BiH in conjunction with Article 9 of the Law on Protection of Witnesses,

However, as it turned out to be necessary at the very beginning of the examinati0n of this witness and asked by the Defense attorney of the Accused about the exclusion of public during the examination of this witness and the reply of the Prosecutor about it, the Court was moved by the witness in person and also by her appointed legal advist:f that the public be excluded during this testimony. They reasoned their proposal by the fact that the witness for the first time after 14 years is talking about torture and rape experienced at the age of 17.

TIDdng into account such a proposal and the agreement of parties with it the Court pursuant to provision of Article 235 CPC of BiH and with a view to protect pcrsonallife and family of the witness issued decision to exclude public during the testimony of ZDz:'

Based on everything presented above it follows that the Court made the assessment of every single motion to exclude public in keeping with the provision of Article 6 (I) ECHR, \.... hich guarantees a right to fair and public hearing, which right is also f:,'llaranteed by the provision • of Article 234 CPC of BiH. The Court issued the said decisions on complete or pa0iaJ exclusion of public during testimony of a number of the aforementioned witne.s.ses by assessing the exception to the rules on publicity of the main trial laid dov.n in Article 235 through Article 237 CPC of BiH. The reasons which guided the Court are clear and have already been explained, but it is necessary to emphasize that almost all ""ritncsses for the Prosecution, especially those with protected identity. are the direct victims of various types of tonure, but that all of them, except the mentioned E, J and ZDZ testified in the open Court. The only type of protection from public was a screen. However, it also nlmed OUl 10 be necessary to protect the witness ZOZ from presenting: her story of rape to the public. The story that was not disclosed for 14 years. It was also necessary not to allow repetition of the testimony like the one given by the witness FWS-74, so the Court decided to remove the Accused from the Courtroom and excluded the public during the testimony of witnesses E and J. Furthermore, what would actuolly be the purpose of approved protection of identity of the witness FWS-75 if the Court did not decide to exclude the public during presentation of the video recording in which the image and the name of this witness appears. The Court also decided to protect personal and family lives of those witnesses, trying at least in this • manner to lessen a trauma which will definitely be part of them until the end of their lives. The Court, while doing so, had in mind the right of the Accused to he tried in the open Court and the Court is of the view that those decisions have not violated tltis right of the Accused.

e. DeoiaJ of tbe Motioo by the Defense for the free pas"age of a Defen~e witness

On 16 October 2006, the Defense filed a motion for free passage of the Defense witnesses. The Defense requested for the Court to guarantee that 17 witnesses who, according to allegations, were all members of the same unit as the Accused, would not be imprisoned. detained or apprehended by any authority of Bosnia and Herzegovina or in any other maimer restricted in free movement regardless whether there is some ongoing proceedings against them or the restriction would be the consequence of actions or previous cOllvictions as well as for that immunity to last 15 days before they appear hefore the Court and 1.5 days a11l:r their testimony.

29 PURL: https://www.legal-tools.org/doc/fac09f/ The Defense attorney stated in his submission that this motion is in accordance -with the leTY practice and that it is based upon the obligation of the Court to provide the fair trial and respect of the Accused's right to defend himself. The Defense attorney further stated that this motion is also in keeping with provision of equality of arms, which is also envisaged in provision of Article 6 (3) (d) ECHR. The Defense attorney pointed out that the said witnesses can expose ''themselves to criminal prosecution and are avoiding appearing hefore the Court because of that fear."

The Prosecutor in his response stated that he could not give {\ perfect guarantee as requested, but that as far as he knew no warrant was issued against the said witnesses, although he could not claim that for lower Courts.

The Court, after hearing the parties, decided to reject the Motion. Article 84 (1) CPC ofEiH which reuds as follows: "The witness shall be entitled to refuse to answer such questions • with respect to which a truthful reply would result in the danger of bringing prosecution to him". The immunity for prosecution may be granted by the Prosecutor (para. 3) and the witnesses shall answer the same questions provided that immunity is granted to such witnesses (para. 2).

As follows from Article 84 (3) epe of BiH. the immunity for prosecution is part of an agreement between the witness and the Prosecutor's Office, which regulation de jure excludes the Court in deciding the issue of immunity of witnesses requested by the Defense attorney. Therefore, the Court is. of the opinion that this provision., except in case the \,,'itness doesn't speak the whole truth in the Court after taking an oath or affirmation, in context of the Prosecutor's response, provides enough guarantees for the witnesses to appear before the Court without having a fear that thcy will be prosecuted.

Additionally: although the Defense attorney invokes the leT'{ practice, the fact that the lCTY is the interniltional tribunal, which orders and decisions should be ccmstrued versus national regulations, is in favor of the absence of provision whieh in the national legislation would represent a parallel to the provision of the Rule 54 of the ICTY Rules of Procedure • and Evidence, stipulates that "at the request of either parly or proprio motu, a Judge or a Trial Chamber may issue such orders, summonses, warrants and transfer orders as may be necessmy for the purposes oj an investigation or jor the prepararion and conduct oj the trial. " All rights and obligations that the witnesses in the proceedings before the Court of BiH are subject of are prescribed in the provisions of Article 81 through 91 CPC of BiH, ~ncluding in such a process the right to refuse answering the incriminating questions, but also the possibility of apprehension or payment of tine if the witness fails to respond to summons or fails to justifY his absence.

And finally, although the measures proposed by the D~fenstl attorney can not be ordered by the Court according to the epe of BiH, the obligation to respect and apply the European Convention on Human Rights entirely provides the guarantee to the Accused that the witnesses on his behalf shall have the equal treatment as the .....'itnesses against rum. That is the obligation prescribed in Article 6 (3) (d) ECHR: "Everyone charged with a criminal offence has the jollow;ng min;mum rights: ... to examine 01' have examined witnesses

30 PURL: https://www.legal-tools.org/doc/fac09f/ against him and to obtain the attendance and examination of witnesses 011 /tis beha{f undel' the same conditions as witnesses against him. ,.'

1) Inadmissibility of certaio evidence for the Prosecution

Although the Court in the introductory part of the reasoning oftrus Verdict listed all pkccs of evidence presented during the main hearing, not all of them were admitted into evidence. Their inadmissibility, that is, reasons that made them as such, was discussed during the main trial and it was decided that the following shall not be admitted into evidence: audio tape of the interview of Gordana Igric with the Accused Gojko Jankovic.: transcripts D1' testimony at the ICTY in the case against the AccU5cd Dragoljub Kunarue et.al, dated 13 June 2000 by witness FWS~105; the transcript of testimony at the ICTY in the case against Dragoljub Kunarac et al. on 4 May 2000 by 'Witness FWS~ 186 and the transcript of the testimony by witness AS in the case against Dragoljub Kunarac et aI. on 19 April 2000; and

W

the video record of conversation with Janko Janjic (also knO"wn as HTuta ),

The Court ruled about the reasons not to accept certain evidence obtained from the ICTY • lll1der the item c) of procedural decisions and here shall only comment on audio recording­ tape of the conversation of the witness Gordana Jgric .....'ith the Accused Gojko Jankovic and video record of the conversation with Janko Janjic.

The sald tape, VIo1thout knowledge of the AccU5ed and his Defense attorney, was presented as evidence by the Prosecution. The witness Gordana Igri6, who was at the time present in the Courtroom, had conducted interview with Gojko Jankovic which was recorded on tape. The Defense strongly objected to listening through this tape because is '!.ras recorded without permission and without giving any warning to the then free citizen Gojko Jankovic that it might be used in some criminal proceedings against him. After listening to the Defense the Prosecution de/acto abandoned this piece of evidence.

Nonetheless the Court allowed a short listening off the tape in order for the witness to confirm that the voice on the tape is hers .

Having considered the objection of the Defense and pursuant to provision of Article 263 (2) • CPC of BiH the Court decided to refuse admission of this evidence. The Court shall make asses the alrthenticity and validity of the Nll'J Article by Gordana [gric in the contexf of assessing all presented evidence. and especially versus the testimony of the author Gordana 19ric, given before this Court on 18 July 2006.

The Court also refusl:!d to admit the video recording of the conversation with Janko Janjic. also knovm as "Tuta". The Defense, quite justifiably, made a reference to the irrelevance of the personal stance and the opinion of this person about the events in Foea during the incriminated period, and especially about the personality of the Accused Gojko Jankovic.

The examined witnesses as well as the material pieces of evidence presented directly during the proceedings before this Court spoke about the incriminated period, personality and the offence of the Accused Gojko Jankovic so the admission of this video recording did not rumed out to be necessary. Furthermore, Janko Janjic had died and could therefore not be examined about the allegations made in the interview.

31 PURL: https://www.legal-tools.org/doc/fac09f/ 5. Applicable Law

As regards the applicable substantive law, the Defense objected to the application of CC of HiH, pointing out that the CC of SFRY) which was a.pplicable at the time of the events concerned, should be applied. According to the Defense, application of any other Law than the CC of SFRY, amounts to a violation of the principle oflegality. The Defense referred to Article 7 (I) ECHR and Article 15 (1) of the International Pact on Civil and Political Rights.

Article 3 CC of Bil-! stipulates the principle of legality; that is, that criminal offenses and criminal sanctions shall be prescribed only by law and that no punishment or other criminal sanction may be imposed on any person for an act which, prior to being perpetrated. has not bl!en defined as a criminal ciTenee by law or international law, and for which a punishment has not been prescribed by law. Furthermore, Article 4 CC of Bili stipulates that the law that \vas in effect at the time when the criminal offense was perpetrated shall apply to the perpetrator of the criminal otTense; if the law has been amended on one or more occasions after the criminal offense was perpetrated, the law that is more lenient to the perpetrator shall be applied. • Also in Article 7 (1) ECHR the principle of legality is laid dDwn. The ECHR supersedes all national legislation ofBiH pursuant to Article 2 (2) of the BiH Constitution. This provision of the ECIIR furthennore contains the general principle prohibiting imposing a heavier penalty than the one that was applicable at the time whcn thc criminal offense was committed. but does not prescribe the imposition of the most lenient law.

Article 4a CC of Bill states that Articles 3 and 4 CC of Bill shall not prejudice the trial and puniShment of any person for any act or omission, which at the time when it was committed, "was criminal according to the general principles of i11lernationai law. " Also paragraph 2 of Article 7 ECHR gives the same exemption, providing that paragraph 1 of the same Article" ... _shall not prejudice the trfal and punishment ofan)' person of any act or omission which, CIt the time when it was committed, was criminal according to the gJ3neral principles of len'>' recognized by civilized nations ". (see also, Article 15 paragraph 1 and 2 of the International Covenant on Civil and Political Rights contains similar • provisions. The State of Bosnia and Herzegovina, as a successor of Yugoslayia, ratified this Covenant.

Tbis provides the possibility to depart, under the described circumstances, from the prinCiples laid down in Articles 3 and 4 CC of BiB (and Article 7 (1) ECHR) and thus to dcpart from an application of the criminal code applicable at the time of commission and of a more lenient law in proceedings constituting criminal offenses under international law.

While considering the objection raised by the Defense, it has to be noted that in the CC of the SFR Y, which was applicable in the period relevant to this case, no provision explicitly dealt with against humanity as provided for in Article 172 CC of Bill. However, taking into consideration other provisions of the valid substantive law as well as the general principles of international law, this objection of the Defense could not be accepted as well-founded.

The Court points out that the crimes for which the Accused has been found guilty {'Qnstituted crimes under international customary law and thus fall under "the general

32 PURL: https://www.legal-tools.org/doc/fac09f/ principles of international law" as stipulated in Article 4a of the Law on Amendments to the CC of BiH and '·the general principles of law recognized by civilized nations" RS stipulated in Article 7 (2) ECHR and thus the CC of BiH can be applied in this case on the basis of these provisions.

The customary international law status of Crimes against humanity and the attribution of indi'i:idua1 criminal responsibility in the period relevant to the Indictment ...vas among others by the Report of the Secretary General of the United Nations pursuant to paragraph 2 of Security Council Resolution 808, dated 3 May 1993, International Law Commission. Comments on the Draft Code of Crimes against the Peace and Security of Mankind (1996) and jurisprudence of the ICTY and ICTR. These institutions fOlmd that the punish ability of crimes against humanity represents an imperative standard of international la\v or jus cogens (International Law Commission, Commentary on Draft Articles on State Responsibility for Internationally Wrongful Acts (2001), Article 26). Therefore, it appears to be beyond dispute that in 1992 Crimes against Humanity were part of intemational • customary law.

Furthermore, the fact that the criminal acts set forth in Article 172 CC of BiH can also be found in the law which was in effect at the critical time period - at the time of the perpetrntion of the offense, specifically under Articles 134, 141, 142, 143, 144, 145, 146, 147, 154, 155 and 186' of the CC of SFRY, or, in other words, that the criminal acts were punishable WIder the criminal code then in effect, additionally suppoI1S the conclusion of the Court regarding the principle of legality.

Finally, the application of the CC of BiH is additionally justified by the fact that the imposed sentence is in any event more lenient than death penalty that was applicable at the time of perpetration of the offense, thereby satisfying the principle of time constraints regarding applicabil.ity of the criminal code, i.e. application of a law that is more lenient to the perpetrator.

The above is line with the Appellate Division of Section r of the Court of BiH in its Verdict against Abduladhim Maktout: no. KPZ 32105, dated 4 April 2006 and Verdict against • Dragoje Pa\ll\ovic, no KPZ 05116, dated 27 October 2006. 6. Findings of the Court

a. General considerations regarding the evaluation of evidence

The Court has assessed the evidence in this case in accordance with the applicable procedural Code, i.e. the Criminal Procedure Code of Bosnia and Herzegovina. The Court ha<; applied to the Accused the presumption of innocence stated in Article 3 cpe of HiH, which em bodies a general principle of law, so that the Prosecution bears the onlls of establishing the guilt of the Accused and the Prosecution must do so beyond reasonable doubt.

In evaluating the evidence of the witnesses that testified before the Court, the Coun has considered their demeanor, conduct and character as far as this was possible. With regard to all the witnesses it has also considered the probability, consistency and other evidence and

33 PURL: https://www.legal-tools.org/doc/fac09f/ the circumstances of the case. Furthennore, the Court has been conscious throughout that the credibility of witnesses depends upon their knowledge of the facts upon which they gave evidence, their integrity, their veracity and the fact that they are bound to speak the truth in terms of the solemn declaration taken by them.

It is insufficient that the evidence given by a witness has been given honestly. The true issue in relation to identification evidence is not whether it has been honestly givcn, but also whether it is reliable. The Trial Panel has been conscious, throughout, that evidence about facts that occurred sometimes (many) years prior to giving evidence, involves inherent uncertainties due to vagaries of human perception and recollection of traumatic events.

As regards hearsay evidence, the Court underlines that it is well settled in the practice and jurisprudence of the Court that hearsay evidence is admissible, Furthennore, pursuant to Article 15 epc of BiH the Court is free in its evaluation of evidence. The approach taken by the Court has been that it ought to be satisfied that such evidence is reliable in the sense • of being voluntary, truthful and tru.stv,.·orthy. Furthermore, the probative value of a hearsay statement will depend upon the context and character of the evidence in question andior if the evidence has been corroborated by other pieces of evidence.

The Cowt considered circumstantial evidence as being such evidence of circumstances surrounding an event or offence from which a fact at issue may be reasonably inferred., Since the crime seems to be committed when many witnesses were not present at the crime scene itself, and since the possibility of establishing the matter charged by the direct and positive testimony of eye~witnesses or by conclusive documents is problematic or unavailable, circumstantial evidence may become a critical ingredient not only for the Prosecution but also for the Accused, The individual items of such evidence may by themselves be insufficient to establish a fact, but, taken together, their collective and cwnulative effect may be revealing and sometimes decisive.

In the present case, the documentary evidence has been voluminous and is of particular importance, In the course of the trial, several documents were tendered into evidence, which were contested by the Deftmse. The Coun has examined each and every document objected .. to by the Defense with a view to deciding on their reliability and probative value.

The Defense submitted that some of the documents 'for which there is no evidence of authorship or authenticity' is unreliable, and can carry now weight. In particular, the Defense contests the admissibility of the statement of witness FWS~ 186 of 9 May 1998 tendered by the Prosecution and which docs oat bear a signature and thus devoid of an clement required for its authenticity,

The fact that a document is unsigned or unstamped does not necessarily render that document non-authentic. The Court did not consider unsigoed or unstamped documents, e priori, to be void of authenticity. Keeping in mind that at all the times the principle that the burden of proving authenticity remains with the Prosecution. Court reviewed all the presented documents, one by one, and is satisfied that the Prosecution has proved their authenticity beyond reasonable doubt. In order to access the authenticity of documents, the Court considered them in light of evidence such as other documentary evidence and witness testimonies, in addition, even when the Court was satisfied of the authenticity ofa particular

34 PURL: https://www.legal-tools.org/doc/fac09f/ docunlent, it did not automatically accept the statements contained there-in to be accurate portrayal of the facts. Indeed, the Court evaluated these statemellt~ in light of the entire evidence hefore it.

b. Chapeau element~ of Crime., against lIumanity and knowledge Accused

The Accused has been charged with the criminal offense of Crimes against Humanity under Article 172 paragraph I items a), c), d), e), f) and g) of the CC ofBiH. For a criminal act to qualify as a Crime against Hwnanity, the law requires, besides the specific elements of the individual act, for the Prosecution to proof all the general or chrtpeau elements of Crimes against Humanity, namely: I That there was a Widespread or systematic attack directed (7g(7in~t any civilian population: 2. That the Accused knew a/the existence a/such an attack: 3. That the acls a/the Accused were part a/the attack and rliat he knew thaT his _ acts were part ofthe attack.

As follows from the previous as stated in the reasoning of the Decision on Acceptance of Established Facts dated 4 August 20(}6 and supported by the testimonies of the several witnesses heard during the evidentiary proceedings, the Court found indisputably and it considers established the fact that at the time relevant to the Indictment, in the territory of Fo~a Municipality there was a widespread or systematic attack directed by the Army of the Serb Republic of Bosnia and Herzegovina, members of the Police and paramilitary formation targeting non-Serb civilian population, with such an attack, in the context of Crimes against Humanity, pursuant to international customary law, not being limited exclusively to the existence of the "anned conflict".

As to the other necessary key elements of Crimes against Humanity, by evaluation of all the presented evidence individually and in their correlation, the Court established beyond any reasonable doubt that in the incriminated period the Accused was ~taying in the area of the Fo~a municipality, that he was a leader of a unit that was part of the Foca Tactical Brigade of the Army of the Serb Republic of Bosnia and Herzegovina and, in such capacity. he was attending meetings of the Crisis Staff, which follows from the testimony ofLjubomir D9Stic • who was a witness tor the Defen5e. It can be concluded that he was fully aware of the existence of the widespread or systematic attack targeting non-Serb civilian population flnd his acts were part of that attack, thus all the essential elements of Crimes agaimt Jlumanily are met.

c. Charges against the Accused

1. With regard to Item 1 of the convlctmg part of the Verdict (Count 1 of the amended Indicunent), the Accused was found guilty, in as much as, hc on 14 April 1992 commanded a group of soldiers who attacked the hamlet of Brdine/Zubovici inhabited by civilians of Muslim nationality ordering the group that he commanded the unlawful arrest and taking away of Enes Hrnji~ic, Halid Konjo, Halim Konjo, Enes Uzunovic, Esad Mezbur, Osman Ramie, Osman Dedovie and Baso GluSac, who were then torcefully taken by other soldiers to detention in Brad where they were interrogated and beaten, and then transferred to the KPD camp in Foea.

35 PURL: https://www.legal-tools.org/doc/fac09f/ Consequently, he, as part of a systematic or widespread attack against the Bosniak civilians of which was aware, carried out forcible transfer of population IlTId imprisonment, in violation of fundamental rules of intemationallaw, thereby committing the criminal offense of Crimes against Humanity in violation of Article 172 (1) items d) and e) in conjlinction with Article 29 CC of BiH.

It is an indisputable fact that an attack was launched against the village of Bre}:ine or Zubovici as it called by witnesses, and that taking men away to captivity was a consequence of that attack. The Court undoubtedly concluded this both based. on the Defense witnesses and prosecution 'Nitnesses' statements

After evaluation of the statements of Prosecution witnesses Enes Hrnjiti6, Felida Glu~c and the witness B, including the Defense v.ritnesses, in particular Dragan Paprica, Radmilo T~rnovie. Zoran Pavlovic and Milenko Paprica all alleged soldiers of the Accused.. the • Court concluded doubt that it was the Accused himself who commanded group of soldiers attacked the hamlet of BrdinelZuboviee inhabited by civilians of Muslim which resulted in the arrest Enes Hmjil!ic, Halid Konjo, Enes Uzunovic, Esad Mezbur, Osman Ramie, Osman Dedovie and Haso Olu~ac. These captives were then forcefully taken by other soldiers and detained in Brod, where they were interrogated and beaten, before being transferred to the KPD camp in Foca.

Witness Enes Hrnjicic and witness B both stated that they were in the house of Asim Kezbur at the moment when the attack was launched. TIley both describe how people, including elderly, women and children, were hiding in the basements of the house when they heard shooting and how they were subsequently forced out. Ferida Olu~ac was in the house of Osman Ramie. Thcre was a distance of about 50 meter between these two houses and white flags were noticeably erected on both houses.

Witness B was certain as to the identity afthe Accused. She emphasized that she had known him since 1979 or 1980; further, she worked together with his wife, in the same organization. as a result of which she would see the Accused when hc visited his wife. She • was aware that the Accused was in the catering business, and stressed that they lived in a small community where people generally knew each other.

The Accused's presence and participation in the attack against Brezine on 14 April 1992 is apparent from Witness B's dear recollection that she only recognized the Accused amongst the group of soldiers who participated in the attack. For this reason she stated that she was looking ceaselessly at him, hoping that he would recognize her so that she and her husband would enjoy some kind of a more favorable treatment.

Witness B stated further that the order of the Accused was that "women should be taken to the garage and men towards Brad by a road behind the house ", This conftrms that the Accused was indeed in command of this group of soldiers. which is also borne out in the following lestimony: "~I am a layperson as regards the military. But there has 10 be a person in charge. Even in a house, there is a host: let alone in a group aisa/diers. When he says:

"You do this. you do that, you go there OJ, I mean .. , ] consider him a commander. ] may be

36 PURL: https://www.legal-tools.org/doc/fac09f/ wrong .. , but ifsomeone issues an order, when he tells his soldier: "Take thot group there ", then you must be dealing with a commander. "

The witness Ferida GluSac remembered clearly how she approached the Accused and askeJ him, "Wnere are you taking my Hasan?" He replied that Hasan was being taken for interrogation and would be returned within tv.'o hours, wbich did not happen. HaYing worked together in the saw-mill in Brod, this y,itness is certain as to the identity of the Accused, She remembered him wearing a JNA uniform, stating: "he was "H"earing a /lili/orm we all swore all'-' ferida Gl~ac also had the impression that the Accused was the commander, in charge of everything which \'Io'as going on during the critical moments. She stated: "All who came asked "Commander, where should we go next ", and he ordered aile group to go towards Tabaci, which is about 1.5 kilometer from Bretine . .. She is SLlre that the Accused ordered thc captured mcn to be taken away - in response to one of the soldiers asking: "Commander, what should we do next?", she heard the Accused give furtber instructions, ufter which the aforementioned mcn were taken away .

The v.itness Enes Hrnji~ic also testified about the Accused, Gojko Jankovic, as the person • who commanded this group of soldiers. He identified the Accused in the Courtroom a~ the same person who led the attack. At the time of the attack, the witness did not know the Accused's name, however, he knew him by sight. In terms of other personal details, the witness knew that the Accused lived at Trnovaca, owned a bar and a house in Montenegro. The witness also knew the Accused's brother. He learnt of this commander's name from the men with whom he was taken away towards Brod, and with whom he spent quite .:;ome time in captivity. Later, the witness' sister, who was together with them in Bre}ioe on the day of the attack, also told him more about the Accused. The v,1tness heard soldiers calling the Ac-cused by the title 'Commander', and so he used the same word to address him when expla.ining to the Accused that a wireless phone charger was not a radio station. \Vitn~ss B corroborated the fact that this conversation took place, as she clearly remembered Enes Hmjiti6 talking to the Accused Gojko Jankovic. Furthennore, when it was ordered that men be separated from WOmen and children and taken towards Brod. it was the Accused whom the witness spoke to and asked to leave at least one man with women and children. The Accused did allow a person, by the name ofCamil, to remain and this \',ras the last time thAt • the witness saw the Accused. The statement of witness Enes Hrnjitic, who was among the captive men, establishes that after they were separated from women and children, he, Halid Konjo, HaJim Konjo, Ent!s Uzunovic, Esad Mezbur, Osman Ramie, Osman Dedovic, Hazo Glu§ac and others, were taken towards Bred. The same also ensues from the statements of buth the witness A and the witness Fenda GluSac who saw how these men, including their husbands, wen: taken away. Although Hmjitic did not know any of the other captured men at the moment when they were taken away. as he was not a loc-aI resident ofBrefine. he discovered their names in the following days. Having been taken away on the basis of 1he Accused's orders. the men reached a road where they joined other groups of prisoners who \ ....ere being esWrted by soldiers in blue Wlifonns. As stated by the witness, these people where civilians from another place, who had been arrested by another group. This evidence establishes that the attack on Brezine was not an isolated incident, but part of a bigger operation.

37 PURL: https://www.legal-tools.org/doc/fac09f/ Subsequently, this larger group of approximately forty to fifty people according to witness Hrnji6c, were taken to Bred, where they were imprisoned in a hall. They stayed there for three nights, during which somc of them were taken out one by one. The witness stated that some returned and some did not. From Brad, the prisoners were taken to Solana, in the residential area of Aladu in Fate., where they remained for around 2 hours. FinaJly, they were transferred to KPD Fo~a, where the mtness Hrnjitic stayed until 18 August 1994. During that period of time he was subjected to much torture, in addition to witnessing both the torture and killing of many other prisoners.

Witness B testified that whilst searching for her husband, she indirectly learnt of the fatc of many of the men who were taken away: amongst other things, that they were imprisoned in KPD Foea.

When she went to visit her husband on 27 April 1992 he told her that he had experienced some problems in Brod, but he did not mention anything regarding his stay in KPD, except • that he was cold and hungry. However, on the occasion of her visit of 15 May, she found her husband in such a poor condition that she could not comprehend how a person could change so much within those twenty days. The mtness rerida Glmac, whose husband Haso Ol~ac spent five months in the camp, also spoke about the fate of the men who were taken away.

Statements of the Defense witnesses, who all claimed to be fellow soldiers of the Accused, assisted thc Court in reaching its conclusions about the attack on Brdinc.

By means of the statements of these mtnesses, the Defense challenged the assertions made in the Indictment and sought to persuade the Court that the attack was not launched by the Unit to which these soldiers belonged, but by some "guardists". Further, the witnesses' Unit WitS not commanded by the Accused, but by a person called Radmilo Babic, the Accused being only an ordinary soldier. The Court found these statements were neither credible, nor logical and, therefor~ had no probative value,

The witnesses Dragan Paprica, Radmilo Tomovic, Zoran Pavlovic. Milenko Paprica, as well • as others who will be mentioned in the text which follows, all claimed to be members of a "voluntary" unit fonned at the beginning of April 1992. In certain respects, the details in these witllf!SSes' statements are in complete hannony. Nevertheless, they are illogical and unconvincing: on the one hand, the witnesses were all able to remember similar, unimportant details, whilst at the same time, they were completely unable to recall any actions taken by their unit. They claim they did not even go to actions, but mainly stayed at " repetitor"(rday).

The Court even has serious doubts about whether all of the aforementioned witnesses served in the army, as several '.\itnesses could not substantiate this by producing any military documentation, such as their military booklets. This, despite the Court expressly requesting such evidence from the Defense in advance of these witnesses being called.

These witnesses stated that after it had been announced on radio that war had broken out in Bosnia, around thirty voluntecrs gathered, who wished to go to defend their area, namely, Fo~a. They gathered in "Maglic" vacation establishment, from where they set off to

38 PURL: https://www.legal-tools.org/doc/fac09f/ Podgorica, the location of a former JNA barracks and where they were issued with unifonns and weapons. Since this group of volunteers was supposed to have somebody in charge of it, those who received them at the barracks asked whether anyone held any military rank. Only Radmilo Babic reported himself, because, as the witnesses stated, he worke-d "[or the army". Once they had organized themselves, they headed towards Foea, where they were fust placed in Brad on Drina. All the witnesses agreed that Radmilo Babic commanded their unit until the fanner JNA withdrew from BiH. which happened on 15 or 18 May 1992.

These witnesses are, as they claim themselves, from Foea, having been born there and spent a considerable part of their life in the area. They went to Montenegro only to tind employment They also agreed that they knew each other, considering that Fuca WAS a small community, where people generally knew each oilier, if not by name, then by sight or through family connections. Bearing these facts in mind, it remains unclear why none of these witnesses were able to give more details about Radmilo Babic, in particular, where he is living now, This, despite the assertion that he was the person who, at those irregular times for all of them, eommanded their unit. It also remains unclear why none of these witnesses were able to give a physical description of their leader. The only witness who attempted to • describe this alleged commander spoke about a short man in unifonn. TIlese witnesses were nut abl!: to provide any other identification data concerning their commander, over Jnd above another witness stating that he was originally from Brod, and is probably now in Montenegro and again employed with the "anny". The defense witnesses did not even know the correct name of their Wllt, nor whom it reported to, yet they were persistent that ·it W

With regard to the Accused, the witnesses are explicit in saying that he held no rank, whilsl also stating that those who did hold ranks did not necessarily display them on their uniforms. The \\'itness Ljubomir Dostie was also persistent about the Accused's luck of rank. Dostie was the Commander of IV Battalion at the critical time. In respunse to a question from a Panel member, this witness stated that many units were commanded by persons without any rank, that is, they were ordinary soldiers. Of course, as such, tlley were • permitted to, and did, attend the meetings oftbe command. The Court has evaluated all these statements within the context of the surrounding events and other corroborating and contradictory evidence, and ha<; COrne to the undoubted conclusion that the Accused did command, at the least de facto, the W1it that attacked Bre~ine/Zuboviee. The Prosecutor's witnesses gave convincing and corroborating testimonies that the Accused was there, gave orders and was listened to. The Collrt finds the assurances of the defense witnesses. that their unit did not launch an attack against Brtine. but that it was done by "some guards", are unfounded and illogical. More specificaJJy, the witnesses say that they went to Brefine two days in a row, in order to negotiate the handover of weapons, On the flrst day, they eame back immediately because the village W3$ empty. They set off to Bre2:ine the following day and it was empty again. Despite this, they say that wh.11e descending towards the highway, they saw "Guards" taking a\vay about fifteen residents ofBrefine.

39 PURL: https://www.legal-tools.org/doc/fac09f/ 'lbe Court is not convinced that one RaJrnilo Babic was Commander of the Unit. That it was the accused who commanded the Unit, is supported by the letter of the Fata Municipality General Administration Section No. 04-835/4, dated 22 January 2007, from which it follows that the Gojko Jankovic at least from 9 April 1992, was leader of Unit 8078/2. This certiticate is a public document and as such there is a presumption as to its accuracy, which Court notes the Defense failed to refute. When combined with the convincing and credible witness testimonies which describe the Accused as the one giving orders, the Court is convinced beyond a reasonable doubt that the ACl;.used commanded the group of soldiers involved in the events described in this Count. In any event, even if Mr 'Babic was the nominal commander of that Unit, it is not of crucial importance, since it is clear from the presented evidence that the Accused was in effective command in Brefine on 14 April 1992.

The apprehension and taking away of the eight men from Bretine was executed by soldiers who were following the Accused's orders, By these actions, the Accused made a decisive • contribution, as a co-perpetrator pursuant to Article 29 CC ofBiH, to the joint commission of the criminal offenses of forcible transfer of population and imprisonment under ATticle 172 (I) items d) and e) CC of BiB.

In relation to the criminal offense of imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law, the Court notes from the presented evidence that the deprivation of the physical liberty of the eight men was arbitrary and mthout legal justification. The Accused had direct intent with regard to the initial deprivation of their physical liberty. He also had indirect intent for the longer period of imprisonment, as, in light ofthc circumstances (namely, the larger operation, demonstrated by the capture of others at the same moment), it was a foresceabll! consequence that the eight men would be held captive for a longer period of time.

In relation to the criminal offense of forcible transfer, the Court notes that the eight Bosniak men were expelled under coercion from the area in which they were lawfully present, without grounds pennitted Wlder international law, as detailed above.

2, Witb regard to Item 2 of the convicting part of the Verdict (Count 2 of the amended Indictment), the Court established that the Accused on 3 July 1992 commanded a • group of soldiers who attacked Muslim civilians hiding in the woods on the Kremenik hills, wounding several of them and killing Fadila OdobMit, Selima Pekaz and Izet Colo, and also capturing about thirty women and children and seven men, namely Husein Barlov, Ziad Barlov, Meho Barlov, Annin Pekaz, Mujo Pekaz, Adem Colo and Sifet ~olo; tbese captives, particularly the men, were questioned and brutally beaten, then brought to a clearing where the Accused was waiting for them; beatings continued; then the women were w:.llked away whilst the Accused and some of his soldiers remained with the seven male captives who were then shot causing bullet injuries to them, principally head injuries: Suet Colo shattering of the cranial vault bones and bones of the base of the skull Armin Pekaz - fracture of the crania1 vault bones and bones of the base of the skull, upper and lower mandible, right upper ann, right scapula and right femur Zijad Barlov - fracture of the ~ranial vault and the base of the skull, fracture of the upper mandible, right thigh bone, right ciavic.ic, right pubic bone and injury to the right upper ann Meho Barlov - fracture of the cranial vault bones and bones of the base of the skull Husein Barlov fracture of the cranial

40 PURL: https://www.legal-tools.org/doc/fac09f/ vault bones and bones of the base of the skull Adem Colo head injury with fractures of the skull bones and Mujo Pekaz head injury with fracture of the temporal.parieta! bone, which injuries caused the deaths of all of the seven captured men; all these ads being the Accused's part 'within a greater attack by the army upon the villages ofTro~j and Mjc~jn that day, involving killings of Muslim civilians and the ransacking and buming of their houses.

Consequently, as part of a systematic or widespread attack against the Bosniak civilians of which he was aware, the Accused carried out murders, tortures and forcible transfer of popuJation, in violation of fundamental rules of international law, thereby committing the criminal oftense of Crimes against Humanity in violation of Article 172 (l) items <1), f) I1nu d) in conjunction with Article 29 CC ofBiH.

When deciding on the charges under Count 2 of the Indictment, the Court evaluated the testimonies of the Prosecution's v.ritnesses, the material evidence corroborating thc charges and the testimonies of the Defense v,.1tnesses tendered. On the basis of this evidence, the Court ftnds tbat the attack on the Muslim civilian refugees, who hid in the woods in the • Kremenik hill, is an indisputable fact. The Court also finds the time, plac~

The consistent, corroborating and credible testimonies of w:itnesses FWS· 75, FWS·RR, FWS-96, DB. FWS-74, FWS-!05 and FWS-87, who were among the artacked refugees. indicated that many villagers from Tro~anj hid on the Kremenik hiB, which is above the village. Having watched many villages on fue, they feared that their villages would also be attacked and bumed dO\lrTI. In the woods they slept under nylon tents. On 3 July 1992, shots woke them up. It was early in tbe morning, between 5 and 6 a.m. As tbey st'Jrted running away up the hill, they were shot, as one of the witnesses testitied, as if the)' were animals. In the course of that "shooting" as the witnesses refer to it, some wen~ killed and some wounded, as \\111 be explained funher. A group of seven men was taken captive, namely, Huscin Barlov, Ziad Barloy, Meho Barlov, Armin Pekaz, Mujo Pckaz, Adem Colo and Siret Colo. These captives, particularly the men, were questioned and bmtally beaten, hefore being brought to a clearing on the hill, where the Accused and marc soldiers were awaiting them. The continuation of their sufferings 'Ifill be discussed below, in the second part of the • explanation of this Count. FWS·95, who lived in Mje~aje, testified bow her village came under attack. She stated that they could also hear shooting coming from the direction ofTro~nnj.

Due to the complexity of the factual descriptions, the gravity of the attack and its consequences, certain parts of the charges against the Accused require a more detailed explanation. This is divided as follows: firstly, the Court addresses the Accused's command over the events on Kremenik hill on 3 July 1992, secondly, the wounding. tonures and killings resulting from the attack and, lastly, the Defense witnesses and potential alibi for the Accused.

41 PURL: https://www.legal-tools.org/doc/fac09f/ aT The role of the Accused

As per the previous Count, the role of the Accused in this attack and. indirectly. the role played by the Unit he commanded, was contested by the Defense.

Based on the coherent testimonies oftbe witnesses FWS-75, FWS-88, FWS-96, DB, FWS-

74, FWS-I05 and FWS-871 who were lUTIong the attacked refugees. the Court finds unequivocally that the Accused, had de facto command over the events on Kremenik Hill on 3 July 1992. This conclusion is ftlrthermore substantiated by the material evidence, as w1l\ be explained later.

Witness FWS-75, who was among the refugees with her parents, gave evidence without any doubt as to the identity of the Accused and the fact that he was the person who commanded the attack. She stated that shc first heard this person's voice over the walky talky of one of the soldiers, directing them: "Do not do anything without orders". She knew that voice well • as the voice of the Accused, whom she knew since the 5th grade of elementary school, when on her way back from school, she and her friend used to often visit her cousin who worked at the Accused's catering establishment. When the soldiers subsequently caught up \-\lith the refugees, some of whom had already been wounded, and forced them to the meadow, she saw the Accused standing next to a rock. He was holding a radio set in his hand. The witness was about 10 meters away from the Accused at this point and she testified convincingly that it was indeed him and not someone else, stating: "When 1 first smv him, J felt relieved, I thoughl he would help me ", According to the witnesses Radomir Kovac and Janko JanjiC, the soldiers Dragan Zeienovic, Slavo Ivanovic and others, arolUld 1\.venty soldiers in totol, were 'Nith the Accused. Witness Janko Janjic, nicknamed 'Tum', states: "lJeared meeting him even befofe the war ".

Thc BBC recording made in late 1993 also conclusively proves that this \-vitness knew the Accused: in that recording, when talking about the crimes in the area of Fota, witness FWS· 75 spoke about the Accused, who she immediately recognized in the photos sho .....11 to her.

Witness FWS-88, who was among the refugees in the woods on the Kremenik Hill, also e testified. ahout the rol~ of the Accused as the commander. Her evidence was that the soldiers, having caught up with the refugees, took the survivors and wounded to the meadow, where she saw the Accused standing next to a rock and holding a radio set in his hand. Although, :;;he could not hellI" what the Accused was saying with the radio set, as she was around 1\.\-'cnt)' meters away. the witness' impression was, nevertheless, the Accused \.... as the person in charge there, as he was the only one v.ri.th the redio set.

Witness DB also saw the Accused on the meadow on the Krernnik hill and testified convincingly that this person was the Accused Gojko Jankovic. She stated that she knew rum from before the war. Although she learnt of his name from other refugees with whom she was in captivity, she remembered the Accused as the person whom she met frequently before the war and who had a coffeebar, In addition to the critical incident, Witness DB also saw the Accused and had direct contact with him whilst in captivity. On the basis of this familiarity. the Court is of the opinion that her testimony unequivocally demonstrates that the Accused was the person who was seen by the witness holding a radio set in his hand on the meadow on the Kremenik hill on 3 July 1992.

42 PURL: https://www.legal-tools.org/doc/fac09f/ The witness FWS-96 was also among the group of attackcd people. She recognized Ndo Jankovic, Slavo Ivanovic, and the Accused. whom she knew very well, among the soldiers. This witness identified the Accused in the course of her testimony before the leTI'. The Defense sought to contest this identification, as well as the witness' assertion that she knew the Accused welL The Court found this witness to be vcry compelling when she desclibed the Accused as the best man of her sister-in-Iaw's son, with whom she often attended the same parties and whose bar she frequented.

Witness FWS-74 speaks about the role of the Accused as the commander of the unit of soldiers who attacked the refugees on the Kremenik hill. She remembers well that the Accused had a walkie-talkie, that it was he who negotiated about something and who \Vf\S addressed by everyone. She knows the Accused from before the war; she knows he owned a bar in frollt of which she often had to wait for a bus. She also used to see him frequently both in Brod and in Fota, but they did not greet each other .

In her statement the witness FWS-I05 also placed the Accused on the meadow on the • Kremenik hill. She had not known him before. According to her evidence, he W[lS the commander, because he seemed to be in charge of the soldiers and they received orders from him. The witness did not have any doubts as to the identity of this person. According to FWS-l 05 this was the same person who raped her at a later point during the war.

In her statement, Witness FWS·87 indirectly corroborates the fact that the Accused v..'US the commander in this event: having seen him in the meadow, she later learnt from others that he had commanded over the attack.

Further indirect corroboration of the Accused's role as commander is provided by the testimony of witness, Nuredin Meeric. This witness \vas a doctor to whom the refugees from Fats, some of whom originated from Trosanj, went upon their arrival in Novi PazaT. In the second half of August 1992, in recounting to him the attack, they mentioned the Accused Gojko Jankovic and his soldiers as the persons who attacked them .

From the convincing witness testimonies detailed above, the Court concludes beyond doubt, • that the Accused had at least de facto command over the group of soldiers executing the attack on Kremenik Hill.

The senior role of the Accused is also established by the wealth of material evidence presented by the Prosecutor's Otilce in the course ofthc main trial. In particular: the letter of the Fo~a Municipality General Administration Section No. 04-835/4, dated 22 January 2007, containing infonnation on the Accused's own military files, which detail that he wos Unit leader of 807812 at least from 9 April 1992; the proposal to declare him a "Vojvoda", given by the command of the Fats Tactical Group under the internal reference number 011705-1 on 13 August 1993 and signed by the Commander, Colonel Marko Kovnc; and finally, the Altic1e in the NIN magazine "Guys on the Hague List" (23 August 1996), '.1.'rirten after the author, Gordana Igric, had visited FuCa and intervie\ved, amongst other~, the Accused. Further, the Court was shown a news reel of an interview with Miroslav Stanic, a leading member of the SDS in Foea at the rekvant time. Tn this interview, Stanic praised the Accused, Gojko Jankovic, as an early hero o[the war. .

43 PURL: https://www.legal-tools.org/doc/fac09f/ The proposal to declare the Accused a "Vojvoda", sent to the president of the Serb Radical Party, Vojislav Seklj, indicates that during the eighteen months of war, the Accused made a huge contribution to the preparation and organization of Serb people for combat, especially to the collecting of weapons and combat training, given his vast experience in fighting "Ust~c" in Croatia.

It is especially emphasized that the Accused established a special detachment with which he participated in the liberation of Fo~a, Cajni~e and other municipalities, setting the example ·tor others as to how to fight. It is stated also that he gave huge contribution to the liberation of the remaining territories of Foca, particularly Cajnice, Kalinovik, Tmovo and Gacko It is also stated that he regarded no impossible missions when executing tasks.

The NIN magazine article, referred to above, is also noteworthy in establishing the Accused's role as a commander. The authenticity of the article's content was e-onfirmed by the testimony of the author Gordana 19ric. Despite the Defense challenging its authenticity • in cross-examination, the author's evidence remained consistent, to the effect that the article was wrinen following her return from Fo~a, where she had spoken. amongst others, fIrst to Dragan Oagovic, the Chicf of the police in Foea in 1992, and, a day later, to the Accused, Gojko Jankovic. When she came to a restaurant in Foea to interview the Accused, he was t=~t:Orted by three bodyguards, (she could not be not sure of the exact number), one of whom sat very close to their table. At the beginning of the interview she placed a tape recorder on the table, but she also took notes, because she knew the tapc recorder was not in full working order.

The Court evaluated the testimony of the witness Gordana Igric as credible. The Defense contested what the Accused Gojko Jankovic had said back in 1996, at a time when anarchy was considered the nonnal state of society, especially in Fota. However, Igric testified that the Accused had told her he had a group of forty to fifty young men, the numbers having grO\\TI over time. He stated they gathered arOlUld him because he was a trader and of good economic standing, meaning he had more money than others. The article states that he became military-engaged immediately, which in the Panel's opinion means Apri11992 - the • beginning of the war. Further, the Accused talks about himself as the commander.

The Court finds sufficient evidence to conclude that the AcclL'iOed did command the group of suldiers un Kremenik Hill, which, in terms of status was a platoon within the Foca Brigade of the Anny of the Serb Republic of Bosnia and Herzegovina. This conclusion is based on the aforementioned pro-posal to declare him a "Vojvoda", the abovementioned lerter containing information that he was leader of his Unit at least from 9 April 1992, and the fact that, according to the information of the Ministry of Defeno;e of the Republika Srpska, ht: was a member of the RS Army, to wit D5- OJ Military Post Office 7141 Fo~a, from 8 April 1992 lUltil 31 January 1997, in the capacity of Lieutenant, and that he was awarded the "Milos Obilic" Medal of Honor, which was only given to the most accomplished soldiers, combined with the credible and clear testimonies of the prosecution's witnesses,

44 PURL: https://www.legal-tools.org/doc/fac09f/ b. Wounding, tortures and killings

The Court finds beyond doubt that some of the refugees were injured during this anack, whilst Fadila Odoba~ic, Selima Pekaz and lzet Colo were killed. Around thirty women and children and seven men were captured and taken to a clearing \\l1ere many of them, the men in particular, were questioned and seriously beaten. Thereafter, the women and children were taken away, while the captured men, Husein Barlev, Zijad Barlov, Meho Barla\', Armin Pekaz, Mujo Pekaz, Adem Colo and Sifet Colo. were kept in the meadow and then shot dead. TIle perforating wounds inflicted are described in detail in the operative part of the Verdict, and also in the aforementioned autopsy reports.

The indisputability of these facts arises, amongst others, from the testimonies of some of the refugees and from those who subsequently came upon the scene and found the corpses of those who had been murdered. The Court fully believes these witnesses' testimonies as they were consistent, credible and corroborated. Witnesses FWS~ 75, FWS~ 74, FWS-96, FWS- 88, FWS~t05 and witness DB testified about the following: the beginning of the Attack which woke up the refugees and forced them to run uphill through the forest; the first • victims, whose lifeless - dead bodies were seen rolling down the Krcmcnik hill; the many who got injured, including a three-year old boy, Amir Odobasic, whose mother had been killed at the beginning of the attack; the wounding of FWS~96, DB and others, and the severe beating of their closest family members, including FWS~96's husband and sons before her own eyes; the taking away of women and children to Buk Bijela: and, finally, the suhsequent murder of the seven men left behind in the meadow. The witnesses all confinned the names of these men who were left behind in the meadow, who \verC their relatives and neighbors.

Having discovered the bodies of their dead parents, Witness C, who was thirteen years old at the time, and ber younger brother set off towards the Kremenik hill in the hope of at least finding someone alive there. However, as soon a.<; they reached the bottom of the hill. they saw items and photographs scattered about and in the forest they fOlmd dead bodies which were, as she phrased it. fresh and the blood was steaming. This witness recovnized the murdered people as all those whose names are cited above. ~ • The. wltness D, who subsequently rrune to the scene~ also saw these kjJled people. His description of the condition of bodies corroborates the fact that men were first sevl;':relv abused before they were shot dead. This witness also saw bodies of Fadila Odob~ic, Sclim·s Pekaz and Izet Colo without traces of bloodshed. This is fullv consistent with avemlents of other witnesses that these three were killed as soon as the' attack commenced the\' y.,"erc trying to escape uphill through the forest. .

Indirect corroboration is provided by witness FWS~ 75, who testified that her father had told her that he had seen the dead bodies of these men in the meadow on the Kremenik hill including the body of his son, as well as seeing the body of his -..vife who was killr:d

Despite maintaining that the Accused was not even present at the attack, the Defens~ insisted that, in any event, none of the witm:sses saw the actual killing of these men. Further, they asserted that it was proven that they were killed at that place and on that

45 PURL: https://www.legal-tools.org/doc/fac09f/ occasion. In this regard, all witnesses were consistent in stating that soon after leaving the meadow, they heard shots coming from that direction where they had seen the Accused, the 7 male captives and some other soldiers for the last time and that the shots could mean only one thing, given that anned soldiers remained. in dle meadow. These soldiers had not hidden their bnuality even from the eyes of the seven men's family members. The Court finds such ev£dence fully corrooorates the suggestion in the Indictment that the seven men were killed soon after the women and children had been taken away. The Court further finds that once some of the soldiers had bem ordered to and had taken the women and children away, the Accused. being an authoritative figure, remained in the meadow with the rest of the soldiers and the seven male captives. The soldiers escorting them, told them to lie down and that it was the Muslims firing at them.

Witness FWS-88, when asked how she connected those shots which were heard from the direction of the meadow with the killings, stated that given how they were shot at, she knew that they \vould not survive. Based on such c.onsistent testimony about the beginning of the attack and the wldiers~ • targeted brutality even at that stage, and the evidence of those who saw the corpses of the seven murdered mcn, together with the autopsy reports on their deaths, the Court unequivocally concludes this Count to have been proveIL The captured women and children wen: taken to Buk BijeJa, whilst the seven captured men were killed in the meadow of the Kremenik hill.

The Court will now explain why it does not accept the Defe~'s assertions in relation to this Count. c. Challenging of Prosecution witnesseS

Th~ Defense contested [he testimonies of witnesses FWS~75, FWS~96 and FWS-74. Further, they tendered witnesses who purported to provide the Accused with an alibi for the day of the attack, arguing that the Accused could not have been present on the Kremenik hill at the relevant time. •

The Defense contested the testimony of witness FWS-75 in its entirely arguing that she has been a witness in further cases and thus could recall things from her memory. However, the Court views her testimony as credible and corroborated by other \vitnesses. The fact that this witness appeared in another case is not a reason, in itself, to challenge her testimony. On the contrary, her consistency in relation to her previous statements and testimonies underli.nes her credibllity.

The Defense also contested part of the testimony of witness FWS-96, using her inability to remember what the Accused was \vearing to demonstrate that Ws witness did not see the Accused at the location of the attack. Taking into account that the witness was at that time being forr.;~d to watch the severe beating of her husband and sons, only to learn soon after that they had been killed, her inability to remember the clothes of the Accused is, in the Court's opinion, not decisive against her identification of the Accused, which she has thoroughly explained.

46 PURL: https://www.legal-tools.org/doc/fac09f/ The Court also concludes that the Defense's allegation that witness FWS-74's testimony was vugue, in that she was W1sble to state whether or not she had entered the bar which she referred to as being owned by the Accused, is not decisive against her identification of the Accused. The Accused and witness lived in the same small community where almost everybody knew each other: as the Defense attorney stated in his closing arguments. the community where "everyone knows each other through and through. .,

The fact that the witness referred to a walkie-talkie, rather than a radio set, as it was called by most of the other witnesses, also does not constitute a factor that would undemline witness FWS-74's identification of the Accused as the person who held this mlkie-talkie. In the Court's opinion, knowledge of these type oftechnicnl devices is not within the every civilian's general knowledge.

When evaluating the minor discrepancies or occasional lack of detail in thesc testimonies, the extremely distressing experiences which these witnesses endured has to be taken into account. By their very nature, these events were traumatic for them nt the time they were endured, and thus witnesses cannot reasonably be expected to recall every detail of the • panicular incidents charged, such as the precise sequence or the exact dates and times, of the events they have described.

d. Alibi of the Accused

As referred to above, the Defense also denied the Accused's presence at, and, by implication, his involvement in the events of 3 July 1992, the day on which the incidents alleged under Counts 2, 3 and 4 of the Indictment occurred. The Defense summoned as witnesses, soldiers of the Accused's Unit, who testified that he left Foca very early that day in order to go to Montenegro, as his sister was due to give birth imminently. Shc indeed gave birth the following day. Spouses Ljubinka and Milomir Papovic, spouses Anda and Milo~ Paprica, !vijlenka Paprica and soldiers of Gojko Jankovic testified about his arrival in Montenegro. Further, despite having being instructed about her right to refuse to testify, the Accused's \vife also insisted on giving evidence .

The witnesses who gave evidence on behalf of the Defense, all of whom claimed to be • members of the Accused's Unit, agreed that the Accused departe-d for Montenegro in the early morning of 3 July 1992. However, they did not agree as to whether he left immediately, that is, directly from the front line or if he returned to Foce before leaving for Montenegro.

Witness Zoran Pavlovic also testified about the Accused's departure. According to his evidence, he was a member of the reconnaissance platoon under the command of Gojko Jankovic. This witness confirnled that the Accused was present in the immediate vicinity of the Kremenik hill, early in the morning of 3 July 1992. The witness stated that his platoon was only deployed as a reserve unit. They were stationed ahout one kilometer away from the village of Tro~j, as the crow flies, a position they reached at approximately 4:00 a.m. At around 6 a.01., they heard shooting which lasted about fifteen minutes and once it had stopped, his unit retreated upon the Accused's orders. According to this witness, the Accused went to Herceg Novi immediately upon their arrival in Fota, which \VllS around 7:20 a.m.

47 PURL: https://www.legal-tools.org/doc/fac09f/ The witnesses Mladen Lazarevic and Petar ACUnovic testified that the Accused went in a van, together with his soldiers, to the asphalt road where his Golf car was parked. Having disembarked the van, he went in the direction of Montenegro via the road through Scepan Polje. 'These witnesses later joined him in Montenegro. The witness Milomir A6imovi6 gave the same evidence in his statement given to the Accused's wife (see below). However, in the course of his testimony at the main trial, he contradicted this account, stating they had returned to Fo~a all together; their leader, Gojko Jankovic, was then the first to leave Foca, and the other members of the unit did so later the same day. This is not the first inconsistency apparent in Milamir ACUnoviC's evidence. The witness' testimony was that he had given rus si~.'ned statement to the Defense attorney ten days prior to his appearance at triaL However, the Det~nse attorney stated that he could not meet this \\'itness, due to other commitments, and so his v.Titten statement was actually taken hy the Accused's wife. who followed the template given to her by the Defense attorney. Only when confronted with this fact did the witness state that he indeed gave his statement to "Lala''', the Accused's wife. • This .... rituess also stated that he had not discussed his testimony with any of the other witnesses. although he travele-d from Foea to the Court, together with Petar Acimovic.

Although instructed about her right, under Article 86 of the CPC ofBiH, to refuse to testify, Miliea Jankovic, wife of the Accused, gave evidence at the main triaL As the Defense Attorney had previously explained, she testified at her ovm insistence. In response to one Panel member's question regarding whether she had discussed the case with any of the Defense witnesses, Milica Jankovic admitted that she was the initiator of H \:alling ~tbesc pcople . She realized who was mentioned under the Counts of the Indictment and she contacted them respectively. She also confrnned that she, herself, took the Milomir ACimoviC's \vritten statement. Her testimony focused on providing her husband \."lith an alibi. According to this witness, on the critical dates, such as 3 July 1992 and late October, that is. 31 October 1992, the Accused WEIS in Montenegro.

The Accused's wife SUIted that on 3 July 1992, he arrived in Herceg Novi, where they lived and ran a store. The day before, a fight had almost broken out between the witness and the lessor of the store and this was the reason for his visit. Her recollection was that he arrived • between 10.00 and 10.30 a.m. and that, on this occasion, he stayed for around ten days. The witness claimed that it was a mere coincidence that his sister gave birth at that time. On the day thllt the Accused arrived, his sister went into labour and his brother-in-law, Defense witness Milenko Papriea, took her to the hospital in the Accused's car. The model of this car was a Golf. At around 21.30, the brother-in-law returned in the Accused's car, whilst the Accused's sister, Borka, remained in hospital.

When asked to explain why the certificate issued by the Kotor Hospital states that her husband's sister, Borka Paprica. was admitted on 4 July 1992, when she delivered the baby, witness Milica Jankovic asserted that this certificate contained only the data necessary for the Register of Births. TIle real hospital record would contain the date when her sister-inH law v,'-as actually admitted to hospital. The Defense's justification for failing to obtain this VtTitten certificate on hospitalization was that the archives containing it were burnt in a fire in 1994. However, the Prosecutor's Office proved this not to be the case by obtaining the certificate in question and presenting it at the very end of the evidentiary proceedings. According to this c~rtificate. the Accused's sister was admitted to hospital on 4 July 1992.

48 PURL: https://www.legal-tools.org/doc/fac09f/ The Court notes that all the Defense v.'itnesses who testified about this matter claim that the Accused's sister was taken to hospital on 3 July 1992.

When evaluating the evidence of the Accused's wife in the context of the testimony of other witnesses who spoke about the Accused's involvement in actions which occurred during the same period when according to her, he was "covered by an alibi", and, in Light of the tact that the testimony of other alibi witnesses contain almost indiscernible, yet crucial, differences, the Court cannot help but contemplate the following thought: that through their contact with the .,vife of the Accused, the witnesses have been consciously or unconsciously iJilluenced by her.

Furthermore, with regard to the hour of the Accused's arrival, the Court notes the discrepancies between the different witnesses, ranging from 10 AM to around 1 PM.

Bearing in mind the consistency of the testimonies given by the attacked refugees and the material evidence detailed above, the Court does not find the defense of alibi to have heen established. The suggestion that the Accused was in, or en route to Montenegro at the • moment the events of this Count occurred is irreconcilable with the findings of this Coun. based on overv·,rhelming evidence, that the Accused was present during the attack on Kremenil;; hilL Moreover, the Court notes that the assertions of some Defense witnesses, in relation to the hour the arrival of the Accused in Igalo, do not exclude the possibility thm the Accused participated in the attack. This alibi docs not exclude the possibility that the Accused could have reached these destinations in Montenegro after the attack, consid.:ring that it took place at dawn, around 6 a.m.: the distance between Fota and Herceg Novi/igalo, according to the testimony of witness Milenko Paprica, could have been crossed in less thiin a three hour's drive.

The Court notes that the Defense's evidence as to alibi and the assertion of his soldiers, that he and his unit were merely present in the vicinity of Trosanj but did not participate in the attack, are insufficient to persuade the Court that there is doubt as to the rok of the Accused, as pronounced in the convicting part of this Verdict. This is especially so in light of the consistl::nt and corroborating statements of the Prosecution witn~sses. As already stated, the Court has allowed for possibility that he went to Montenegro on 3 July 1992. • However. it certainly was not a'i early in the morning and in the manner described by his soldiers.

Drawing together the above evidence ~ the testimonies of witnesses who saw the Accused at the time and the location of the attack on the Kremcnik hill; then, making a connection between the Accused's presence and the fact that his poSition as the lea.der of his respeclh'e platoon has been established - the Court found it indisputable that the Accused had at least a de facto commanding role during the attack on the Kremenik hill. Even though somc of the men. such as Dragan Zetenovie, were not part of his Unit, it follows fcom the testimonies that the Accused was in charge of this entire operation and it was he \vho gave orders, initially by walky-talky, which were followed by the soldiers involved. By doing so, the Accused made a decisive contribution to the perpetration of the criminal offenses committed against the civilians hiding on Kremenik hill, and thus is guilty, pursuant to Article 29 CC of 8iH as a co-perpetrator for jointly, with the soldiers, perpetrating the criminal actions as described in the operative part.

49 PURL: https://www.legal-tools.org/doc/fac09f/ These actions involved the murder of lzet Colo, Fadila Odoba~ic and Selima Pekaz, contrary to Article 172 (1) item a) CC of BiH and the beating of the captured Bosniaks, amounting to torture, contrary to Article 172 (1) item f) CC of BiB, as the beatings caused severe pain and suffering and were done in all cases on the discriminatory ground of the victims' Bosniak ethnicity. The taking away of the women and children amounts to forcible transfer contrary to Article 172 (1) item d) CC of BiR, as the women and children were taken away by force from an area in which they were laMully present, in order to cleanse the area or Bosniaks. The murder of Sifet Colo, Armin Pekaz, Zijad Barlov, Meho Barlov, Husein Barlov, Adem Colo and Mujo Pekaz, amounts to murder contrary to Aniele 172 (1) item a) CC of BiB. In relation to those murdered, the Court notes that they did not take aeti'.'c part in the hostilities and that they died as the result of acts intended to have this consequence.

3. With regard to Item 3 of the convicting part of the Verdict (Count 3 of the amended Indictment), the Accused was found guilty, in that on the same day (meaning on 3 _ July 1992), the captured women and children were forced to walk to Buk Bijela. a temporary detention and interrogation facility, under the escort of some of the Accused's soldiers, where the Accused arrived later with the remainder of his group, and there they questioned the captured women; the Accused, together with Dragan Zelenovic and Janko Janji6 interrogated female detainee FWS-75 and he threatened to gang-rape her if she lied; he then allowed onc of the soldicrs to take the female detainee into another hut where she was raped by at least ten unidcntified soldiers and lost consciousness.

The testimonies of witnesses FWS-75, FWS-88, FWS-96, DB, FWS- 74, FWS-I05 and FWS-87 irrefutably establish that the group of captured women and children that was walked away from Kremenik Hill by soldiers (the events described in Count 2 (Item 2»), was then taken to Buk Bijela.

Witness F\\'S-75 stated this group arrived in Buk Bijela around 10 or 11 a.m ... Beban Vasiljev1c and Janko Janjic were amongst the group of soldiers who accompanied them. The \vitness was able to identify Buk Bijela. on photos shown to her by the Prosecutor and • admitted into evitlenct:. The witness recounted how one soldier led her to one of the barracks, which she indicated on the photos of Buk Bijela. There she saw Janko Janjic, Dragan Zclcnovic and the Accused, all of whom she all knew. At the time, she was surprised at the fact that the Accused had got there gO quickly.

Im.ide me n'a:rrack, the wiiness remembers the Accused was sitting on a table. He infonned the witness that if she told the truth, nothing would happen to her, however, if she lied. they would gang-rape her. The witness did not understand what the Accused meant. He proceeded to interrogate her, demanding to know which of the residents of her village had weapons and who was supplying them with arms. Then he asked her to make a list of all the villagers, from the smallest child to the oldest man. The witness stated that she tried to say whatever it wa.;; the Accused seemed to want from her. In particular, she made a list of all the villagers, only leaving oul her father.

FoJlo\\1ng this interrogation, the witness was taken to another barrack. On a picnrre shov.n to her by the Prosecutor, she identified this building as the barrack immediately adjacent to

50 PURL: https://www.legal-tools.org/doc/fac09f/ the Drina River .. , On her way to this barrack she witnessed tmknov.n soldiers taking her uncle Red:!o Pekaz in the direction of the Drina River, He was covered with blood. Once inside this barrack. the witness recounted: "And [...} there Gojka did what he IuJd promised. Ilc orchestrated my gang-rape. J know only JhaJ] had counted Jill ten, ] couldn 'f Gl~vm()re, f lost consciousness. And all the time I could hear my uncle and his screams whde they were bealing him. How he was roaring and screaming. Ho,v [. .. } they were bealing him, suddenly shots were heard[. ..}and he was gone, he became silent. "

The witness recalled the queue of people in front of the barrack's door. The people were standing there expectantly, as if waiting for their salary or some food, a~ one would wail before the WilT. But,. as she stated, "they were queuingfor rape . .,

The next thing she remembered was being in the toilets of the barracks, and having waler splashed in her face. Then t\'>'O soldiers led her to the bus which took the group of womcn and children away from Buk Bijela. The lasl occasion on which the witness sa\\' the e Accused was when she left the barrack in which she had been interrogated ... Although unable to testify directly about what happened to witness FWS- 75 as they were not present, all the Kremenik HlIl captives, in particular, witnesses F\VS·96, FWS-87. FWS·74, FWS·88, FWS-I05 and DB, spoke about interrogations and rapes taking placc during their time in Buk Bijela.

Witness FWS· 74 saw the Accused in Buk Bijela. on July 3 1992. Further, she stated that she saw hlm arrive there by car with m'o others.

Witnesses FWS-87 and FWS-74 both testified that they were also raped in one of the barracks in Buk Bijela. This establishes a pattern of conduct that goes beyond coincidence, thereby reinforcing the credibility of those witnesses who claim to have been raped in Buk Bijela. Witness FWS-74 told the Comt how Janko Janjic took her to a room, where an unidentified soldier was waiting. There, the fioldier ordered her to undress and raped her vaginally. FWS-87 stated how she was also taken for intenngation and raped by at least four soldiers, one of them being Dragan Zelenovic . • Apart from the victim FWS·75 herself, there were no other direct witnesses to her gang­ rape. However. evidence provided by other witnesses serves to corrohorate her account. Some witnesses saw the victim being taken to "interrogation" and returning from it, whllst others testified about her condition as a result of the rapes in Buk Bijela. At the time, the victim also spoke to other witnesses about her experiences in the barracks.

Witness PWS~96 was wowlded during the attack on the Kremenik Hills and it \vas according to her only by virtue of the massive bleeding which resulted, that she avoided being raped by Janko Janjic. She had been taken to one of thc barracks and he had ordered her to take off her clothes. This witness stated: " ... and other women were taken for Interrogation, J saw when they were returned. One of them had the worst luck.. if this ;ne FWS 87. She was not 15 yet. Both she and FWS 75 did badly ~ there were several oflhem to rape them. "

51 PURL: https://www.legal-tools.org/doc/fac09f/ Witness FWS-88 stated she was in Buk Bijela with FWS-75, FWS-48, FWS-96, FWS 74, FWS-l 05, FWS-87 and DB. Some of these women had told her they were taken to huts and raped.

Witness DB also testified about the rapes in Buk Bijela. Her schoolmate, 'Nhose name is kno\\lu to the Court, approached her and took her to an area between the barracks informing her it would be safer for her to sit there, rather than to go to the interrogations. The witness stated: "He probably knew what they were doing there so I avoided fhat interrogation and 1 was not mislreated while J was in Buk Bije/a. "

It follows from witness FWS-105's prior statement, given to the Prosecutor on 16 January 2006, that she was interrogated at Buk Bijela, but not raped. Some soldiers interrogated her about arms in her village, SDA members and other maners, before searching her for valuable items. She was aware of presence of another person in the room on this occasion, but through fear did not look in his direction. However, this witness testified that she later • learnt from the Accused that he was there. Having later taken this witness from the Partizan Sports Hall, the Accused raped this witness jn the house in Tmovaca (item 5 of the Verdict). During this event, the Accused asked the detained witness whether she suw n man lying on the bed during her interrogation in Buk Bijela. She answered that she was afraid to look. The Accused then told her: "1 was lying on the couch. It was me. " This fact is confirmed by the witness' prior statement of9-11 Febmary 1996 in which she stated: later on; "during my detention in Parllzan, Gojko Jankovic told me that he , ....·as the soldier l'.'ho was present during my interro~a(ion at Bille Bljela. "

The Court is convinc-e-d of the Accused's presence in Buk Bijela at the relevant time, and. for the reasons set out in Count 2 dismisses the Defense's assertion that he had already departed for Montenegro and his alleged alibi. The Court gives full credence to the statements of both witness FWS-75 and witness FWS-74, who clearly identify the Accused as being prescnt in Buk Bijeia. This fact is also corroborated by the statement ofFWS-105.

III addition to the other Prosecution witnesses, the Defense particularly disputes the entirety of FWS-75's testimony, on the basis that her statement was not confInned by others. The • Court considers this to be an incorrect depiction of the evidence. Apart from the actual moments of her interrogation and subsequent gang-rape, the remainder of her testimony is corroborated both directly and indirectly by other \\fitnesses. The Court further notes that the experiences which this witness endured that day were extremely traumatic: she \vitnessed the murder of her mother and brother, was repeatedly mped, during the course of which she heard the screams of her uncle who was being beaten. Then she heard shots and it became silent. In these circumstances, the v.itncss cannot reasonably be expected to recali the minutiae, such as the precise sequence or the exact time, of the events she described.

Thus, the Court considers it established beyond reasonable doubt that the Accused, together with Dragan Zelenovic and Janko Janjic, interrogated female detainee FWS· 75 and threatened to gang-rape her if she lied. He then allowed one of the soldiers to take the female detainee into another hut where: she was raped by at least ten unidentified soldiers and lost consciousness.

52 PURL: https://www.legal-tools.org/doc/fac09f/ It follows from the previous reasoning, that v.'ithin a \.\'idespread or systematic attack against the Bosniak civilians in the area of FCK:a Municipality and v,'ith knowledge of such attack and willingly participating in it by his actions, the Accused is guilty under Article 172 (1) items g) and t) CC of BiH and Article 29 CC of BiH as a co-perpetnttor of the criminal offenses of rape and torture ofFWS-75.

The court notes that cumulative convictions based on the same conduct are pennitted, providing that each of the crimes contains a distinct clement which requires proof of a fact not required by the other. This is so for rape and torture: for rape, it is sexual penetration and for torture, it is the prohibited purpose (such as obtaining information or a confession. punishing, intimidating or coercing the victim or a third person, or discrimination on any ground).

In addition to the legal requirements for rape having been met, the legal requirements for torture under Article 172 (1) item f) CC of BiH are also met. as the gang-rape of the injuf(;d party. FWS-75, caused her severe pain and suffering, was intentional and prohibited purposes were present. In the first place, the rape was discriminatory, ac; it was based on the • victim's Bosrunk ethnicity. Furthennorc, the Accused threatened the victim with gang~rap(' ifshe did not tell the truth. As he was apparently not content \\~th the answers she gave, she was punished by being gang~roped.

The Accused is liable as a co~perpetra1or pursuant to Article 29 CC of BiH, as his actions "decisively" contributed to the joint perpetration of the aforementioned criminal acts. The Accused handed FWS~ 75 over 10 one of the soldiers, follOwing which she was gang-raped as he had "promised". This suggests an understanding between the Accused, who was a tlgUIe of authority, and the soldier about the injured party's fate. This degree of involvement makes him a co-perpetrator.

The Prosecutor charged the Accused with instigating the rapes of FWS-87 and FWS-74, since he threatened FWS 75 with gang~rape in front of the eyes of Janko Janjic and Dragan Zelenovic. The fact that the Accused was at least in de facto command of the soldiers all Kremenik Hill, the act willch preceded the bringing of children and women to Buk Bljcla . (see section 2 of the sentencing part of the Verdict), cannot by itseifmean the same \,,'85 Imc • for every soldier in Duk Dijels. In t:.h.is regard, the Court notes that it is unkno'>VI1 who the oth'!r soldiers were next to Dragan Zelenovic and Janko Janjic, in relation to the rapes of FWS-87 and FWS-74. Furthennore, neither Dragan Zclcnovic.nor .lanka Janjic were part of the Accused's Unit. The Court cannot on the basis of the presented evidence, conclude beyond a reasonable doubt whether or not the Accused's behavior indeed prompted the rapes ofFWS-87 and FWS-74.

4. With regard to Item 4 of the convicting part of the Verdict (Count 5 of the amended Indictment), the Accused was found guilty. From mid-July until mid-August J 992. many Muslim civilians were detained in inhumane conditions at Partizan Sports Hall in Foea, including female detainees FWS-87, FWS-95, FWS-48 and FWS-I 05. In that context, the Accused committed the following acts:

53 PURL: https://www.legal-tools.org/doc/fac09f/ between the above dates the Accused Gojko Jankovic, together with an unidentified soldier, took FWS-95 and FWS-48 out of Partizan Sports Hall to a house in Gomje Polje, where the Accused raped FWS-95 vaginally;

a few days after the rope described above, the Accused Gojko Jankovic came again to Partizan Sports Hall with three other unidentified soldiers and they forced FWS-95 and three other Bosniak women captives to walk to a premises in Foca, where they were all ordered to undress and wash. There, the Accused roped FWS-95 vaginally;

on a dafe in late July or very early August 1992, the Accused Gojko Jankovic and Beban Vasiljevic drove FWS-95 and FWS-87 from Partizan Sports Hall to a house in Tmova~a, where Gojko Jankovic raped. both FWS-95 and FWS-87 vaginally and where Beban Vasiljevic also raped FWS-87 vaginally; TIle (OLUt established these facts on the basis of the statements of the follo .... ~ng v.r:itnesse~. • Witnesses FWS-75, FWS-88, DB, FWS-96, FWS-95, FWS-74 and FWS-87 testified about the circumstances relating to the detention of women in the detention Centers ofFoca High School and Partizan Sports HaiL In particular, they gave evidence about the conditions in which they were held, the rape of female detainees and the role of the Accused in these events. Of these testimonies, the statements of .....itnesses FWS-95 and FWS-87 were especially convincing and relevant to the role of the Accused.

It is clear from the testimony of FWS-75, FWS-88, DB and FWS-96, that the group of women captured on 30 July 1992 in Trosanj and brought to Buk Bijela (see Item 3) was subsequently forced to board a bus and taken to Foea High School. As determined by the lCTY and accepted by [his Court as an established fact, the conditions in the detention Centers Foca High School (and Partizan Sports Hall and Kalinovak School) were extremely poor. Prisoners were provided ."..-ith insufficient food and hot water; further, while imprisoned in Fo~a High School, women and young girls were the victims of rape. Soldiers • were able to, and. did enter Fota High School and take out women and young girls in order to rope them. This appears from the testimonies of, amongst others, FWS-75, FWS-88, FWS-87 and FWS-95, who were all raped in the period they were held in Fo~a High School. After approximately two to three weeks, these women were transported to Partizan Sports Hall.

In Partizan Sports Hall, the conditions were equally bad, if not even worse than in Fo~a High School, as stated by witness DB. Upon arrival the women were forced to cle.an the hall. This Court accepted as a fact established before the ICTY lhat the women were kept in intolerobly unhygienic conditions, were badly mistreated, were provided with insufficient food and their freedom of movement was curtailed. This fact was also confinned by the witnesses who testified before this Court about their imprisonment in Partizan Sports Hall. Further, as detennined by the ICTY and accepted by this Court as an established fact, the women detained in Partizan Sports Hall lived in fear. This is conftrmed in the testimonies of the v.imesses that appeared before this Court. Soldiers, both as individuals and in groups,

54 PURL: https://www.legal-tools.org/doc/fac09f/ could enter at any time and take women out to rape them, as happened to FWS-95 and FWS-B7.

In mid-August 1992, after approximately a month of detention, those detainees wbo were still held in Partizan Sports Hall were removed and expelled from Fo~a to 'Novi Pazar, Republic of Serbia. This CRn be inferred from the testimonies of witnesses FWS 96, FWS- 95 and Doctor As~eri6,

The rape and humiliation did not end in mid-August 1992 for all of the victim-witnesses mentioned above who were initially detained in Partizan Sports Hall in mid July 1992, The credible and consistent testimonies of Witness FWS-7S, FWS-87 and D,B. establish that they were removed from Partizan Sports Hall and taken to 'Karaman's House', \vere their pain, suffering and humiliation continued.

Witness FWS-95, who was roamed and had two young children at the time these offences were committed, stated that she was raped five or six times at Foca High School. When she • got to Partizan Sports Hall, the incidents ofrape became much worse. Witness FWS-95 testified that she was not raped by the Accused in Fo6a High School. However, during her period as a captive in Partizan Sports Hall she was raped three times by the Accused.

In relation to the first incident, she stated that the Accused together v.~th another soldier, in camouflage uniform arrived in dusk - one could still See - and he took them, her and fW ·48. to a house. The witness recalled that this ho~ was in Gomje Polje. They went there on foot. She did not know the other man. Upon arrival, the Accused ordered her to undress. Then she and FWS-48 had to t

In relation to the third occasion of rape, Witness FWS-95 stated that the Accused came by a car and took them away to a certain house in Tmovaca, She was together with another v.'Oman but she could not recall whom. The Witness stated she was subsequently ordered to take a bath and was then raped by the Accused. Later, the women were brought back to

55 PURL: https://www.legal-tools.org/doc/fac09f/ Partizan Sports Hall, They were taken to the hous~ in Trnovaca by the Accused and as the \\fitness described it, a friend of the Accused. When shown a picture of the Tmovaca house, the witness stated she was not sure whether it was the house 10 which she was taken. She did recall that it was a separate building. The witness could not estimate a date when the third alleged incident occurred. In response to options given by the Prosecutor, she placed it in August, rather than July 1992, and early in August, rather than later.

The witness testified with absolute conviction that it was the Accused, Gojko Jankovic, who raped her on those three occasions. Furthennore, she was able to pick the Accused out from the picture board she was shown by the Prosecutor.

According to \Vitness FWS-95, 12 August 1992 was the last day she was held captive in Partizan. On that date she was taken by soldiers from Partizan Sports Hall to the town stadium, together with another person whose name the witness wrote on a piece of paper and is thus knO"'11 to the Court. Amongst theses soldiers was Dragan Zelenovic. The next day, the witness, together with others who still remained in Partizan, were put in a bus and • transportt:d to Novi Pazar. Witness FWS-95 stated that she was subjected to a total of approximately one hundred and fifty rapes during the war. As a consequence of all these rapes, shc stated that she stills suffers greatly, both physically and mentally. She is withdra'.Vl1 and cries a lot. Moreover, she often catUlot sleep and has "dreams about the camp."

The Court notes that this witness appeared to be suffering greatly whilst she was testifying. It is unquestionable that the rapes she suffered caused her severe mental and physical pain.

In cross-examination, the Defense attorney asked the witness why she never mentioned the Accused in the ten-page statement she gave in 1996. The witness stated it was a short statement if she would have told everything that had happened to her, it would have been a "nove"', not a short statement. Furthennore, she is now taking medication and can remember more.

In relation to witness FWS-95's testimony, the Court takes especial note of the testimony of • the expert witness, Doctor Causie Comic Marija, a specialist in neuropsychiatry. Having seen the \-\fitness' medical file and met with the witness herself, Dr Marija stated that the \\itness' slow speech is attributable to trawna and not caused by drugs/medication. Further, although the witness suflers from Post Traumatic Stress Syndrome, she is capable of giving an honest testimony as a result of the drugs/medication she uses. In particular, the Doctor was of the opinion that, owing to use of these prescribed drugs, it was perfectly feasible that the ",itness can remember things now which she was unable to recall in 1996.

In rdation to third instance of rape described in Count 5 of the Indictment, the Court notes the testimony of FWS·87. who described how she and another woman were taken away from Partizan Sports Hall. Witness FWS·87 remembered that this woman was married, but could not recall her name. They were taken to a house in Tmovaca, there were the Accused, Gojko Jankovic and another soldier. She stated she was raped by both of them. She didn't know about This other woman because she did not see it. The witness stated that this was the only time I was taken to this house in Trnovaca, The rapes were vaginal. With regard to the

56 PURL: https://www.legal-tools.org/doc/fac09f/ other person who raped her, the v.itness stated that she knew his last name was Vasiljevic and he had a nickname which was either Boban or Beban.

She stated that they came by car from Partizan Sports Hall to Trnovaca and arrived at night time. She described the house they were taken to as having two storeys', which is true of the Trnovaca house in question. When shown pictures of the Trnovaca house, the witness stated that it might be the same house but that she could not say with certainty that it \.... a5 indeed the house to which she was taken, together with the married woman, The witness also thought that the following morning they were taken back to Parti:l.aJ1 Sports HalL

In his cross examination of FWS-87, the Defense underlined that there was no mention of this incident in the testimony which this witness gave to the lCTY investigators on 19 and 20 January 1996. Therefore, he suggested that her testimony was unreliable.

The Court does not agree with the Defense for the following reasons. On pages 9·11 of the statement which FWS~87 gave to ICTY investigators, she gives a general description of the rapes she endured while detained in Partizan Sports Hall. She never attempted to state exact • details in relation to every rape and these pages must be read in this context. In her statement, she describes how women in Partizan were taken mostly to apartments and houses in Foca and to places like 'Brena, Donje Polje, Tmovaca, near the Primary School in Foca, to the Alada area Notably. she specifically mentioned that in Trnovaca and Aladh they were taken to houses not apartments - the place to which she was taken in 'J'movucu was indeed a house, not an apartment. The statement reads: .. Tllfa, Jankovic, Vasi(jcvic Behan, and Bojot were also raping me during these limes. Again I canl10t remember exactly who raped me and were." Although this statement is not as detailed as the testimony witness FWS·87 gave before this Court, not only does the witness mention the Accused explicitly as one of the men who raped her, but she also mentions a house in Trnovaca as a location where rape took place.

The Defense, rdying on the testimony of the witnesses Savo Arsenic, Bo~ko Partalo, Stevo Elezovic, Bogdan Pavlovic, Soniboj Kova('!evic, disputed that the Partizan Sports Hall served as detention center for Muslim women and children, from which womell were selected and raped. All these witnesses were guards at the guard-pelst in front of the Partizan • Sports HalL According to the Defense, it can be concluded from their testimonies tbat no women were taken out ITom the Partizan Sports Hall. Furthermore. none of them had ever seen the Accused nearby the Partizan SJXlrts Hall. Mitar i=iiiXic, the person in charge of the refugees accommodated in the Foca High School, testified about the arrival of civilians to the Partizan Sports Hall.

In the Court's opinion, there is a lack of logic and consistency between the testimony of these witnesses and the Court will deal with their statements briefly.

The above-mentioned guards were all deployed in ITont the Partizan Sports Hall in order to watch the Secretariat af Internal Affairs which was located opposite the Hal!. According to these witnesses, Muslim refugees from the vicinity of Fo~a, and also from other places, suddenJy appeared in the Partizan Spans Hall. As the witness Bo~ko Prutalo says: "these people simply came, they were there ": moreover, these '1Jeopie'" were free and could Jeaw,' and enter the Partizan Sports Hall whenever they wished. Being free, "these people" one

57 PURL: https://www.legal-tools.org/doc/fac09f/ day, says the;: witness Stevo Elezovic, "simply left the Partizan Sports Hall and got into the buses ... " The Court note that these were the buses from which they were transported from Foea. This witness also stated that there was not a single person younger than forty-five to fifty years old and that he guaranteed it was a lie that there were also younger women.

As the witnesses confinn, they (only) guarded the Secretariat of Internal Affairs. Witness Soniboj Kovatevic for example states: "We never had ParNzan. Olher people were in charge of the Parli:an Sports Hall. " The. 'Witness Partalo points Dul: "our primary task was the Secretariat of Internal Affairs and these people were detailed to us". Then he said: "Nobody has ever taken out anyone". However, in the cross-examination, he explained: ",\Vhen I was on duty there was no such thing. I heard it from my colleagues and they did not dare to object." Withoul the need to restate any more testimony, close examination of these witnesses' statements reveals that one point on which they all agreed was that nobody was ever taken out of the Hall whilst they were on duty.

The indisputable fact that women were taken out from Partizan Sports Hall also arises from _ the statement of the witness, Bogdan Pavlovic, who said: ".M~y female neighbors were there, we were removing them. and then returning 10 Ihe Partizan Sports Hall for Iht! overnight stay. ,. Howcver, he also claimed that nobody was taken out during his shift, whilst he could not account for what happened during others' shifts. He fwther stated: t. , •• there were some drunk and armed [. . .] who were coming and we opposed as much as we could not to allow them ro enter rhe Partizan Sports Hall", This witness said that he remembered FWS-75, PWS-48 and DB as the female detainecs in the Partizan Sports I-Iall.

It is clear that the summoned guards did not know what and whom they were guarding. Although they claimed never to be sick or replaced by other guards, they nevertheless still heard from some colleagues that during other shifts there was ;'somc taking out".

Thus, the Court concludes that Defense witnesses in no way provided the Accused with an alibi of non-entry or involvement in Partizan Sports HalL

On the basis of the evidence eited above, the Court is satisfied beyond a reasonable doubt as • to the ide-ntification of the Accused by witnesses FWS-95 and FWS-87 and his role in the events described above. In relation to the third incident described in this Count, the Court relied on the credible and convincing testimonies of witnesses FWS-87 and FWS-9S. These testimonies are consistent and corroborate each other.

The only evidence presented to the Court in relation to the first and second item of this count was the testimony of FWS-95 and thus. in convicting, the Court relies solely on her testimony. Nevertheless, the Court is free in its evaluation of the evidence submitted and corroboration is not required in general or in particular. This rule applies equally to the testimony of a victim of sexual assault.

Despite the fact that FWS-95 did not provide many details about her rapes by the Accused, especially about the second occasion, the Court considers her testimony reliable and convincing. With regard to the second rape, she remembered that they went on foot and the number of other women taken. Furthcnuore, she was able to clearly recount and distinguish bern'cen the incidents of rape. Given the length of time which has elapsed since the incident

58 PURL: https://www.legal-tools.org/doc/fac09f/ and the trauma of the event, she cannot be expected to be able to provide streets names, exact dates or locations. It must be taken into account that this witness had been a captive for a substantial period of time while living in fear for her life, integrity and children. D1t' judgment as to the credibility of a witness lies solely in the domain of the Court, withjudg~s free to draw any conclusion they see fit, providing it passes the threshold of reasonableness. Witness FWS-95 clearly passed this threshold beyond a reasonable doubt in the eyes of the Court and thus has been given ful! credence.

The intention of the Accused to effect the sexual penetration and the knowledge that it was done without the consent afthe victim clearly ensue from the presented evidence.

Therefore, it follows from the previous reasoning that, within a widespread or systematic attack against the Bosniak civilians in the area of Foea Municipality and with a knowlcdge of such attack and willingly participating in it by his actions, the Accused committed the criminal offense of rape and torture of the injured parties FWS-95 and FWS-87. under Article 172 (1) items g) and f) CC of BiR The Court reiterates that cumulative convictions for rape and torture which are based on the same conduct are permitted because each of the • crimes contains a distinct element requiring proof of a fact not required by the other. Namely, for rape, it is sexual penetration and for tonure, it is the prohibited purpose (such as obtaining information or a confession, or punishing, intimidating or coercing the victim or a third person, or discrimination on any ground). The acts of rape of injured parties FWS- 95 and FWS-87 also met the legal requirements of torture under Article 172 (1) item t) CC of BiH, since, in the opinion of the Court, the act"! of rape caused severe pain and suffering, were intentional and the prohibited purpose was present, namely discrimination on the bnsis of the victim's Bosniak nationality. The victims were taken from a detention facility wh\:!fe only Bosniaks were held. They were and could be the victims of the above descrihed humiliations, as many other Bosniak women, only because they were not Serb. The Court notes that there is no requirement that the acts need to have been perpetrated solely for one of the prohibited purposes. If one prohibited purpose is fulfilled by the conduct, the fact that such conduct was also intended to achieve a non-listed purpose, such aq one of a sexual nature does not make it impossible for other (prohibited) purposes to be present .

Finally. the Accused also aided and abetted the torture and rape of the injured party FWS-87 • by Reban Vasiljevic, as prescribed under Article 172 (I) items f) and g) in conjunction with Article 180 (1) CC ofBiH. The Accused, together with Beban Vasiljcvic, took FWS-87 and FWS 95 from Partizan Sports Hall, being fully aware that they were being taken away for the purpose of rape. The Accused provided practical assistance to the rape by Beban Vasiljevic by allowing him access to the howe at Tmovaca, ",,'bich was under the Accused's effective control. There Beban Vasiljevic raped FWS-87. Thereby the Accused also aided and abetting the torture ofFWS-87, since the act of rape of this witness alS(l fulfils the legal requirements of torture for the same reasons as stated above.

3. With regard to Item S of the convicting part of the Verdict (Count 6 or" the amended Indictment), the Accused is found guilty in that he, on an unknown date in late July or early August 1992, together with Beban Vasiljevic took the female detainees FWS. 105 and DB from the detention Center at Partizan Sports Hall to a house in the village of Trnovata in the municipality of Foea, where the Accused Gojko Jankovic spent the whole night with female detainee FWS-105 and raped ber twice, while Beban Vasiljevic raped

59 PURL: https://www.legal-tools.org/doc/fac09f/ female detainee DB and the next morning, on the order of the Accused, they were returned by Beban Vasiljevic to the detention Center at Partizan.

In rdation to this Count, the Prosecution called witnesses DB, FWS-96 and FWS-74. As detailed above, in addition to these testimonies, the Court also accepted into evidence investigatory statements given by Witness FWS-I05. These comprised statements given to the ICTY investigators, dated 9-11 February 1996, and a record of examination given to the BiH Prosecutor, dated 16 January 2005.

In her statement of 16 January 2005, witness FWS-I05 stated that while in captivity in Parti'Z.an Sports Hall she was called by her name and taken, together with DB, to a house in Trnovaca, by the Accused and another man. There, DB and this other man went to the lower noor of the house, whilst she and the Accused remained upstairs. The Accused instructed her to have a shower and he joined her there. She was subsequently taken to the bedroom, where she was raped "almost the whole night, there were breaks, but it lasted the whole • night. 0' She was raped twice. The following morning, ''the other soldier" took FWS-l 05 and DB back to Partizan Sports Hall. In her statement of 9-11 February 1996 the witness named the Accused., Gojko Jankovic, as one of the men who raped her during the period when she was detained in Partizan Sports Hall.

The Court gives full credence to these statements, in light of their corroboration by the testimony of other witnesses.

Witness DB recalled huw approximately seven or eight days after her arrival at the Panizan Sports Hall. she and FWS-] 05 wt:re taken out by the Accused and "'Beba" at around 8 PM. D.E. and FWS-I05 were takc:n to a house in Tmovaca, which Witness DB was able to identify on the pictures shovm to her by the Prosecutor. According to DB, they were brought to this house by vehicle and in the course of the journey were infonned that they were being taken for interrogation. Upon arrival at the house in Trnovaca, they were first made to prepare _ some food, before later washing dishes. However, they were not interrogated. Vlitness DB testified that '"'Beba" took her from the kitchen to the room upstairs ·next to the bathroom. She spent the whole night there and she stated that she was _ raped once, Witness DB confirmed that FWS·105 remalned in the kitchen \vith the Accused, The next time she saw FWS-105 was the following morning, at 7 or 7:30 a.m. FWS-105 was making coffee. The Accused was also there, Subsequently, Be~an Vasiljevic took them back to PartizHfl. DB could not recall whether the Accused Gojka Jankovic accompanied them. She did nol talk to FWS-105 aboul the incident, however. they could see from their faces and condition what happened.

'l'he Court is further convinced by the certainty with which DB testified about the two men's identity. At the time of the ofience, she knew the Accused Gojko Jankovic by sight. She later becaII1e aware of his name, stating that only on the meadow she knew again, when other people infonned her of this infonnation. This occurred on 3 July 1992, when her village, Trosanj, was attacked. On this occElSion, she \I,.'3S also told Beban Vaslijevic's name.

Witness FWS·96 stated that from Foca High School, she and other women were taken to Partizan Sports Hall. When asked by the Prosecutor if she knew the names of those women taken out by the Accused, FWS-96 confirmed that FWS-I05 and DB were taken out

60 PURL: https://www.legal-tools.org/doc/fac09f/ together. According to her testimony, the Accused undertook this act with someone but she did not know this second person's identity. FWS~96 explained that she knew of this indicent because FWS-l 05 told her that she was raped by Gokjo Jankovic at Tmovaca, in the house of her neighbour Halim Cedic. Furthennorc~ she added that she knew where that house is; that is near to Gojko's house and that he knows that well.

Further corroboration is provided by Witness FWS~74, who testified that whilst she was never raped by the Accused in Partizan Sports Hall, she knew of FWS-105's rapc by the Accused because on one morning she came back and FWS~ I 05 told her that she was raped by Gojko Jankovic in Tmovaca.

The events which the witnesses experienced were, by their nature, extremely traumatic. Thus, they can not be expected to recall every precise detail, sequence of events or the exact dates of the events described. Additionally, the witnesses were detained for weeks or. in some cases, months, without an opportunity to record their experiences .

The Court does not consider the minor differences between DB's testimony and the • statements of FWS-l 05 as discrediting their evidence, since the essence of their accowlts is the same, and both were convincing v.itnesses. When considered together, the testimonies of F',VS~74, DB, FWS~96 and the transcripts of FWS·105's testimony at ICTY provide clear, corroborating, consistent and highly credible evidence on which to base a finding of the Accused's guilt.

The intention of the Accused to effect the sexual penetmlion and the knowledge thnl il was done v.ithout the consent of the victim, clearly ensue from the presented evidence.

Therefore, it follows from the previous reasoning that, as a part of a widespread or systematic attack against the Bosniak civilians in the area of FoCa Municipality and with knowledge of such attack and willingly participating in it by his actions, the Accused committed the criminal offense of rape of the injured party FWS-IOS, wlder Article 172 (1) item g) CC of 8iH. He also committed the criminal offense of torture of the injured party FWS·I05, under Article 172 (1) item f) CC of BiH, since the act of rape of this witness also fulfils the legal requirements of torture: the act of rape caused severe pain and suffering, • was intentional and the prohibited purpose was present, namely, discrimination on the basis Bosniak nationality. The victim "Was taken from a detention facility \vherc only Bosniaks were held. She was and could be the victim of the above described humilintions, as for many other Bosniak women, only because she was not Serb.

The Accused furthermore aided and abetted the rape afDS, as prescribed under Article 172 (1) item g) in conjunction with Article 180 (1) CC of SiH. The Accused, together with Beban Vasiljevic, took DB and FWS~105 from Partizan Sports HaJl, despite being fully aware that DB was also being taken away for the purpose of rape. The Accused provided practical assistance to the rape by Behan Vasiljevic by allowing him access to the house at Trnovaca, which "Was under the Accused's effective control. There Beban Vasiljevic raped FWS~DB. Thereby the Accused also aided and abetting the torture since the act of rare or this witness also fulfils the legal requirements of torture for the same reasons as stated above.

61 PURL: https://www.legal-tools.org/doc/fac09f/ 6. With regard to Item 6 of the convicting part of the Verdict (Count 7 of the Indictment) the Accused was found guilty, in as much as he, on 2 August 1992, together with Dragoljub Kunarac and Dragutin Vukovit ("Gaga"), removed female detainees FWS- 186. FWS-191 and JO, all teenagers, from a house in Alad1:a and took them to a private house in Trnovata, occupied by the Accused; female detainee JG only remained there a few days but both female detainees FWS-186 and FWS-191 were kept there until the end of January 1993 and throughout that time the Accused raped female detainee FWS-186 many times; Dragoljub Kunarac raped female detainee FWS-191 many times during the tirst two months, with the Accused also raping female detainee FWS-191 on one occasion within that period; when female detainees FWS-186 and FWS-191 were moved to another apartment in January 1993, the Accused continued to rape female detainee FWS-186 there until the end of Nowmber 1993; both Gojko JankoviC and Dmgoljub Kunarac used female detainees FWS-186 and FWS-191 as sexual and general servants at the Tmoval!a House, treating them as objects and personal possessions and exercising complete control over their lives.

In relation to this Count, the Prosecution presented FWS-l91 as their principal witness. • Before the Court, witness FWS-191 testified as follows: she lived in Gacko and was seventeen years old when the events alleged in the Indictment occurred. FWS·191, together with her brother, mother and sister, was part of a group of Bosniaks captured near Ulog. A couple of days after their capture, around 7 July 1992, they were taken by truck to the school in Kalinovik. The witness stated that on 2 August 1992 she was taken away by Kunarac, aka "Zaga", and a soldier nicknamed "Oaga". She described how she sat herself next to a small baby, which was not hers, to give the impression that she was a young mother. However, KWlarac came directly over to her and told her to get up. Her mother stood up, trying to offer herself in her daughter's place, however, this plan failed. FWS-19l WIlS taken away together with seven or eight other detainees, among them FWS-186, FWS- t 90 and JG. A guard said to them he did not dare to intervene because "Zaga" was dangerous man. According to this witness, FWS-186 was sixteen years of age at the time, FWS-190 was sixteen or seventeen and JG was twelve or thirteen. They were subsequently taken away by a red Lada vehicle, which passed through the centre of Kalinovak, before being loaded into a Refrigerator truck. In Miljevina, the truck stopped so that the soldiers ~~-~y~~ • Eventually, they arrived at a house in the AladZa area of Foea. Inside the house were soldiers, of whom the witness particularly remembered Vojvodo Govodariea and lure Ivanovic. Ivanovic told her to remain with him in order to avoid gang rape. She recalled how Govodarica, a tall man with grey hair and a grey beard, entered the room and told them about ambushing a Muslim - how he had decapitated him and kicked the victim's head along the ground. The witness stated that she was not maltreated in this house. Some time later, Kunarac came together with the Accused. This was the first time the witness met the Accused, Gojko Jankovic, whom other soldiers referred to as "Gojan" or "Gosjo". It was obvious that Kunarac and the Accused held some higher rank as when they entered everyone stood up and made space for them to sit. Then Kunarac told FWS-191, JG and FWS-186 to go with him and the Accused. The witness FWS-191 looked to lure lvanovic for help, however, as she testified, he simply "shnmk." They were taken in white Golf driven by Klmarac. They drove first to the Partisan Sports Hall, where Klmarac got out of the vehicle .. The Accused stayed in the car and questioned the three girls as to whether they were virgins, which they confirmed.

PURL: https://www.legal-tools.org/doc/fac09f/62 When Kunarac returned, they went to a house in Tmovaca, which the witness recognized on the photos shown to her by the Prosecutor and later submitted as evidence. FWS-191 later learnt from locals that the original oymer, a Muslim, had been killed. However, she stated that at the time she came to the house, it belonged to the Accused, because his name was on the door. The witness FWS-191 testified about the fear she felt that evening .. Eventually. the Accused infonned them about who should go into which room. He sent her to the ground floor which was some type of sununer kitchen . .TG had to go to a small room with "Gaga" and FWS·186 was to go to a room on the 1n floor, where the Accused was supposed to spend the night with her. The witness FWS-191 stated: "Zaga and l,I'rn( down tv the room below, and he sat down on the bed and told me 10 sit next to him Qlld then he said Ihal his name was Dmgoljub Kunarac and that he was called taga; he showed me a pendant and explained thaI Ihe reason why he was wearing it was that it was like a furm of identification, in case he was killed. Then he told me to undress. 1 asked him If J could bring a sheet, because I was ashamed. J was a child al that time and J felt like a (.'hild. " The ....'itness stated that for her at time sex for her was a taboo subject. She stated: '"/ come from Ihe family where morals were very high. 1 asked him 10 bring a sheet in case blood passes • through. And he sent me up. '·Go and ask Jankovic ", J asked Jankovic mid JankoJ'it gcll't' me a sheet. He put a bayoneI nexl to the bed. .. On that first night, Kunarac did not penetrate the witness because she was stiff, which, as she stated, was the only way to defend herself.

The next moming, FWS-186 told her that the Accused had raped her and that he had placed a pistol under the pillow or next to the bed. Speaking about JG, the witness said:",)'he was only 13 years old and she was ashamed to say anything. She kept saying that she had not been raped" FWS-191 said that they asked Kunarac and Gaga to take her back to her mother in Kalinovik, but instead they LOok her to Kamman's hOllse in Miljcvina.

The Court notes that although the Prosecutor addressed the rape of JG in his closing arguments, the Indictment does not charge the Accused, Dragoljub Kunarac or Dragutin Vokovic (Gaga) with such criminal offense.

The injured party FWS-191 stayed in this house, together with FWS-186, until January 1993. During the first two months, she was constantly raped by Dragoljub Kunarac, aka • Zaga, who Jeft at the end of September. Kunarac raped FWS-191 at least twenty times. In that period, she was also raped by Zoran Nikolic on two occasions. She recalled that Nikolic was from Nildic in Montenegro. FWS-191 was also raped once by the Accused. This occurred after the wedding of one of his soldiers. The Accused had taken both her and the injured party FWS-186 to the wedding. Upon their return, the Accused, who was noticeably drunk, locked FWS-186 in a room and then raped FWS-19L The witness testitied that the Accused was not able to ejaculate, so her rape lasted for at least one hour. During her testimony, FWS-191 stated that, notwithstanding all the suffering, both she and FWS-186 were aware that they could have met the same fate as those female captives who were detained in centres which in effect served as brothels. These women and girls were raped by multiple soldiers. However. the Accused did not allow KWlarac to take her and FWS-186 to Montenegro, as he knew that Kunarac would allow them to be used as prostitutes. They had no altentative, as stated by FWS-191. since, if they left, they would. as she stated. go into circulation either to Karaman's house or somewhere else. She stoted that Jankovic gave

63 PURL: https://www.legal-tools.org/doc/fac09f/ them the security of being with the same people. As stated by FWS-191, they simply did not have any control over their destinies.

When questioned by the Prosecutor, FWS-191 stated that the sex was not voluntary. This was also true for FWS-186, for whom she said she could speak. In the period spent in the Trnovaca house, they had to continuously cook, iron, and clean. They were not allowed to usc their own names. Moreover, Kunarac named her Gordana aka "Goea". The Accused named FWS-186 "Sanja". Later, when they saw FWS-190, she had "been named Anja, a name she used until she returned to Sarajevo with her children in April 1997.

Witness FWS-191 described to the Court how during her captivity she became acquainted \ovith her future husband, who, as she stated, was very kind and treated her as a human being. According to the witness, Kunarac left the house in part due to this man; also because the Accused did not approve of how Kunarae behaved whilst there. He kept bringing in soldiers and onc woman, Jadranka Zalo, who treated her and FWS-186 very badly. FWS-186 and • FWS-191 left the house in January 1993 and moved to a house in Foea. When her future husband took her and FWS-186 to Pale to "be exchanged, she decided to remain in Foca because she was pregnant. She had been told that pregnant as she was, Muslim doctors '""'Quid massacre her and the child out of her. In relation to the Accused, the witness also testified that she knew that he was the commander of his Unit - a paramilitary unit, composed ofloea! people from the surroundings ofMesjaja, Popov Most and Tmovaca. She stated that during their captivity they were taken to Buk Bijeta, where the Accused's soldiers were deployed. He commanded a group of around forty or fifty.

Thc testimony of FWS·191 is given full credence by the Court. She gave accurate, extensive and truthful answers, which were corroborated in full by her mother, FWS-192, by the testimony of FWS-17S and FWS-190 and by FWS-186's Mitten statement, accepted pursuant to Article 273 (2) epc ofBiH.

Witness FWS-192, the mother of FWS-191, testified that in early August 1992, Kunarae took FWS-t91, FWS-t 86, FWS-190 and witness JG away from the school in Kalinovik. Some days later, thi~ witne~" WR." ~ummoned by ber nickname (which her daughter had • probably revealed to her captors) and was taken 10 a separate room. Kunarae and the Accused were there and they handed her a letter from her daughter, which stated that she was doing fine and was in some house in Tmovaca. The Accused introduced himself as Gojko Jankovic and told her she should not worry about her daughter because she was with him. This first enCQ1.U1ter with the Accused lasted for about one hour.

Thc statement which FWS-186 gave to ICTY investigators was read in pursuant to Article '273 (2) epc of Birt In this statement, this witness completely corroborates the testimony of her peer, FWS-191. FWS-186 recounted how she was capurred whilst fleeing together with other women and children from their attacked village and how she eventually ended up in a house in Tmovaca. She stated that, she, FWS-191 and JG were taken by the Accused, Dragoljub Kunarac, aka "Zaga"" and Dragutin Vukovic, aka "Gaga", from a house in Foea to a house in Trnova~a. They were transported in a police car. This was her first meeting with the Accused. FWS-186 remembered how when they arrived at the house in Trnova~a, Gojko Jankovi6 said that he would take her, Gaga would take JG and Zaga would take FWS-191. ''1 had ro be with Gojko Jankovic all the time while J was in that house. Gojko

64 PURL: https://www.legal-tools.org/doc/fac09f/ Jankovic raped me during s;x months which I spent there. 771e first rime when he raped me, he aslced me iff was a virgin. J fold him thaI] was. He threatened me with (I pistol and said rhal. if I did 1101 agree (0 have sex wilh him. he would lake me (0 Miljevina. He mf:'nrirmed Mi!jevina 10 'hreaten me, because he knew that J knew that girls were raped hy a number (if soldiers in Mi/jevino. Anyway, J did not have a choice. I do !la/ want 10 spe(lk abolll 'he details of the rapes. While J was kept as a hostage, I was not raped by anyone else excf!pt Gojko Jankovic. J did nol hecome pregnant. Gojko Jankovic took care of (hat, ..

FWS-186 confinned that FWS-191 was raped by Dragoljub Kunarac during approximately the first two months of their stay in Tmovaca. She recalled that Zaga came to the house frequently, at some periods almost every night. At one point, FWS-186 asked the Acc.u!'cct about her friend FWS-J90 and he informed her that she was in Miljcvinu and he would bring her to see the ...... ;tness. He brought her to the house in Tmovaca and she stayed wilh them for about seven days. On a couple of occasions. the Accused also took her TO the house of Janko Janjic to see FWS-190 .

FWS-186 described the Accused as a person who ruled this house and who gave them a • certain kind of protection. She pointed out that many soldiers would corne to the house. mostly those under the Accused's command. She and the injured party FWS-191 were obliged to cook for them, however, they only ate and drank; the witness stated that ",hey did nOl beal liS. J think fhal Gojko Jankm'it did nol allow lhat. He was slIpclior to Ihose soldiers. .. In her statement, the witness stressed that although they had the key to the house and very often were left alone in the house: "We had nowhere to escape 10. We were surrounded hy Serh territ01Y and we couldn't go anywhere . .Ianko"h: and thlt other.l· 1I'c:1! knew fhat we were not there by our own will. " They would tell them that no-one was looking for them and that at the exchange. their side was searching for flour, not people.

Witness FWS-l90 also testified about the removal of FWS-191 and FWS-186 from the school in Kalinovik to a house in AJadta. She was held in sexuul slavery by Janko Janjic. nicknamed ''Tuta''. for around eight to nine months. FWS·190 testitied that when FWS-J86 and fWS-J91 came with the Accused to lanka Janjic's mother's apartment during this period, they stated that they had !>ten taken by the Accused and were now in a house in Tmovaca. FWS·186 was designated to the Accused and FWS· I 91 to Kunarac. They spoke • about having sexual intercourse with the Accused and KunarJc, in return for which ulcir captors provided them with security. The witnesses c;'xpressed to FWS·l90 that it was beneT [0 be with one of ·them' than all of 'them'. FWS-I90, who Went to the Trnovaca house several times, testified how when she visited she saw FWS·191 and Kunarac naked, having: sexual intercourse. FWS-190 further stated that she saw sexual acts taking place betwecn FWS-J86 and the Accused in the Ribarska settlement in Foca, i.e. the apartment to ..\"hich FWS-191 and FWS-186 were moved from Tmovaca.

The fact that FWS-186 and FWS-191 rcmained in the house in Tmovacfl, under the control of the Accust:d, was corroborated by witness FWS-175, sixteen years old at that time, who testified to having spent some six to seven days with them there. "L..1ga" a.nd "Gaga" were both present in the house, but it was Gojko Jankovic who was in-charge. Asked to explain why she thought the Accused was in charge of the house, she said: '·Because rhLyall called him Major and everyone asked him abolll everyfhing that was needed. for a report or anything else, if all went through him. They all treared him as one a blr superior to them. "

65 PURL: https://www.legal-tools.org/doc/fac09f/ FWS·186 and FWS·191 personally told her that they were repeatedly raped in this house; FWS·186 by Gojko Jankovic and FWS·191 by Kunarac. This witness was also raped twice by Drngutin Vukovit, nicknamed "Gaga", in the Tmovai::a house. She was of the opinion . thut the Accused had it within his power to have prevented the incident she endwed in this house, as she recalled how he prevented any of the girls being beaten or abused by any of the visiting soldiers. The fact that FWS·186 was being roped oo1y by the Accused is also confinued by this witness: "No one was allowed to touch her, no one dared to say anything to her. ,. Tlus was also the case when Gojko Jankovic was away from the house.

In relation to the period after FWS·186 and FWS·191 lefl the Tmovaca bouse. the testimonies of vt'itnesses FWS·191, FWS·19O and Defense witness Sanja Kulic, establish that FWS·191 and FWS·186 were living together in an aparunent in the Ribarska fish settlement in Foca. According to Kulic, FWS·186 stayed there until her exchange in November 1993.

The v.;tness Sa[~a Kulic stated she fU'St met FWS·191 sometime near the end of 1992 or e beginning of 1993 and that she became friends with her. She would often visit the apartment where she and FWS·186 lived. Although friends with FWS·191, witness Kulic stated she rarely saw FWS-186, whom she described as a withdrawn pcrson. With regard to the relationship between the Accused und FWS·186 during that period, she stated that on a couple of instances, when FWS·186 spoke about the Accused in her presence, she spoke about him in superlatives. Witness Kulic stated that she would spt:"ak otT her desire to see him, to spend time with him.

In cross-examination. the Prosecutor asked this witness marc about the relationship betvleen the Accused and FWS·186. She stated that FWS·186 probably, or most certainly, knew the Accused very well. Witness FWS·190 saw the Accused and FWS·186 having sex in an apartment in Ribarska - they were not wearing clothes at the time. The witness FWS-191 also stated that the Ac<.:used and FWS·186 had sex in the apartment in the Ribarska area in foca until spring 1993.

In relation to both the description of the Accused as a so·called "protector" ofFWS-191 and e FWS-186 nnd the alleged "love" between FWS·186 and the Accused, the Court iakes nute of expert. witness, Dr. Alem Bravo Mehmedba~ic, a neuropsychiatrist requested by the Prosecutor. Dr Mclunedba~ic presented her findings about whether detainees could form relationships with captors who bad raped, tortwed or subjected them to other similar mimeatmt!nt. in circumstances when: such persons had strong power and influence over them. And. ifso, what fonn this relationship might take on these facts?

Having evaluated the Statement of FWS·186 and audio·tapes of FWS-191, FWS·175 and FWS·190, she Slated that their self-esteem had been destroyed by sexual tortUre. For a significant period of time, they had no active control over their ovm bodies and minds, which in effect led to psychological regression and a complete dependency on those who had full control over their lives. As their time in captivity progressed, the impossible conditions led these witnesses to use the adaptive psychological strnlegy of starting tht!ir lives allover again. Dr Mehrnedb~ic explained that in order to survive, victims developed a dependcnce on the A<.:<.:used, who commanded authority and could prevent others from torturing them. This included elt:ments of his idealization. These ft!eiings were not emotions

66 PURL: https://www.legal-tools.org/doc/fac09f/ of attraction or love. nor indicators of a mature emotional relationship in a !lonnal environment. in which the partics arc on an equal footing. These relationships cannot be viewt!d or undt!rstood in the context of nomal emotional interactions. They were victims. who, in an attempt to forge the reality and the awareness that their lives depended on their torturer would often idealise them, perceiving them to be an almighty person. In this \vay. the victim struggled for their mental survival whilst in drastic conditions in which they could not even use their real names.

According to her statement, FWS-186 was captured by soldiers in camouflage uniform aftl:r the attack on her hometO\VI1, Ravne, on 26 June 1992. She was takcn to a school in Kalinovik and from there, to the house in Tmovaca by the Accused, who she stated was the soldiers' superior. This witness' statement confirmed that there was nowhere to escape 10 because they were surrounded by Serb territory and so could not go an)'\\"'here. Although this comment was made specifically in relation to Tmovaca, the Court tinds that this state of affairs also applied in and around the apartment in the Ribarska settlement in Foca. v.:here she was taken in January 1993 and where she stayed tmtil she was exchanged. There she also had sexual intercourse with the Accused, FWS~ 186 was only sixteen when she was first • raped by the Accused, \l.lho was more than twice her age at that time. She even cnquircd of him how he could rape her given that she was young enough to bl: his daughter - one of the Accused's daughters was only a year younger than FWS-186. In response to this question. the Accused would get angry and even threatened her on another occasion, As such, she had every reason to fear violence,

The Court is satisfied beyond reasonable doubt that under the aforementioned circumstances, the relationship between the Accused, who was a manied man and the father of three children, and the minor FWS-186, could never amount to or {fCl1!sjorm info a nonnal and c-onsensual sexual relationship. Given the extreme conditions in which FWS- 186 fOlUld herself, she was never in a position to give a true consent. She was de ./i7C!O deprived of her sexual autonomy, as can be concluded from the testimony of Dr. Alcm Bravo Mehmedba~ic, This is not changed by the fact that FWS-186 told !CTY investigators that she was not abused by the Accused from February 1993, whilst in the apartment in Foca. The Court thus concludes that in the period after FWS-186 and FWS-J91 left the Tmovaca house and before FWS·IB6 was exchanged, the Accused continued to rape FWS- • 186. The Defense witnesses Kulic Sanja, Pavkovic Branka, ~~njcvic Rack, Zivfffiovic Zorica and Todorovic Mira, who socialized with FWS-J91 and who, according to her, were kind and benevolent, stated FWS-191 never mentioned that she had been raped by the Accused. However, this does not cause the Court to doubt the truth and credibility of the testimonies and statements of, amongst others, FWS-191, FWS-lS6 and FWS-l90.

Several Defense witnesses implied that the house in Trnovaca was occupied in the period relevant to this Count by one Sretko Dl"ajit, a car mechanic. Previously it had belonged to Halid (son of Habib) Cedic, a Muslim, as appears from the testimony of Zada Cedi6 who told how she was expelled on 26 June 1992. several days after her son had been murdered.

In this regard, witness Zoran Pavlovic stated that Sretko was in his unit, the Unit of the Accused. However, he did not know when Sretko moved into that house or when he was

67 PURL: https://www.legal-tools.org/doc/fac09f/ killed. Tht! witness m:vt!r visited the house, but he knew Srctko was living in it, as it is the house by the main road. Witness Petru ACUnovic, on the other hand, had a slightly better recollection of the relevant dates and testified that Sretko moved into that house after the owner had been killed and his mother expelled. That was on 26 June 1992. He would call on Sretko, a car-body repairman. who fixed cars at the house. Witness Mladen Lazarevic, Deputy Commander to Gojko Jankovic, spoke about the house in Trnova~a which was used by Sretko O'-;ajic. The witness stated that Sretko lived in that house from Jate 1992 or early 1993. He continned that soldiers would stop by to have their cars repaired there. However, the witness did not know the fate of the hou..c,e's original owner and at the very end of his testimony stated that he was never in the house since he did not have a car.

However, based on the accounts ofFWS-l9llllld FWS-186, in addition to the testimony of witnesses FWS-17S and FWS-190. the Court finds it indisputable, beyond a reasonable doubt, that the house in Trnovaca was lUlder the effective control of the Accused during the period relevant to this Count. The Court is also satisfied beyond a reasonable doubt that the Accused acted as described in • the operative part of the verdict. Consequently, as part of a systematic or widespread attack against the Bosniak civilians of which he was aware, he carried out torture and sexual slavery of the injured parties FWS-186 and FWS-191 when they were at the house in Tmovaca and the rape of FWS-186 when she was at the apartment in Ribarska, in violation of fundamental rules of international law, thereby committing the criminal offense of Crimes against Humanity in violation of Article 172 (l) items f) and g), in conjunction with Article 29 CC ofBiR

It has furthennore been established beyond a reasnnable doubt that FWS-191 and FWS-186 were at thc house in Tmovaca against their will. The fact that they preferred to stay under the Accused's "protection" in order to avoid ending up in brothels where they would have been ''raped by an unknown number of soldiers" manifestly cannot amount to an exercise of their free will or choice. The Court is satisfied beyond a reasonable doubt that these girls had no realistic option whatsoever to flee the house or to escape from their protectors. The Defense's assertion that this Count is not proven since "lhl5Y begged him to let them stay", e lind as such, it is suggested the Accused did not detain them, is lherefore rejected.

On the first night each girl was assigned to one of their captors; thereafter, they had to obey all their orders, satisfy their sexual demands, and were also made to do chores in the house. Dtroughout their forced stay, the girls were compelled to answer to Serb names, they had no control over their lives and no freedom of choice. It is beyond any doubt that FWS-191 and FWS-186, while held at the Trnovata house until January 1993, were under conditions rullOlUlting to sexual enslavement. The aoove described conditions clearly amount to the intentional exercise by the Accused of any or all of the powers anaching to the right of o\1ffiersbip over a pef50n.

As stated above, the Accused continued to rape FWS-186, after she left the house in Trnovaca and while she was at the apartment at the Ribarska settlement in Foca, until she was exchanged.

68 PURL: https://www.legal-tools.org/doc/fac09f/ By this FWS-186 and FWS-19l were subjected to acts of a sexual nature and torture under article 172 paragraph 1 items t) and g) CC of Bill.

The Accused is guilt)' of holding FWS-186 and FWS·191 in sexual slavery a.~ a co­ perpetrator pursuant to Article 29 CC of BiH. He jointly and knowinglY participated in the selection of the girls and the transportation to the Trnoval!a house. He took poSseSSiOll of FWS-186, while Kunarac took possession of FWS-191. The Accused provided the house which he hud previously occupied, and from the first instance, he took part in establishing and enforcing the already-described living conditions at the house, in concen with KUnarac. In thls period the Accused also once raped FWS-191. Furthermore, the Accused is guilty of roping FWS-186 in the period after she left the house in Trnovaca up until she was exchanged.

The acts of sexual slavery al50 amount to torture since the acts caused severe pain and suffering, were intentional and the prohibited purpose was present. namely discnminJtion e on the basis Bosniak ethnicity.

7. With regard to Item 7 of the convlctlllg part of the Verdict (Count 8 of the amended Indictment), the Accused was found guilty in as much as he. in late October or early November 1992, together with Dragan Zelenovic and Janko Janjic, removed female detainees FWS-75, FWS-87, AS and twelve-year old, AB, from the detention Center known as "Karaman's House" in J\.1.iljevina, and drove them by car to an apartment in Foea ncar a fish restaurant, where Janko Janjic ordered the female detainees FWS-7S and AB to give a bath to the Accused Gojko Jankovic, who raped underage female detainee AD in th~ bathroom, while Dragan Zelenovic raped female detainee FWSM87 and Janko Janjic raped FWS-75.

In relation to this Count, the Prosecution presented witnesses FWS-87 and FWS-7S. The Court also relied on parts of the testimony given by witness FWS-191.

Witness FWS-75 testified that on 30 October 1992. the Accused came to "Karam un's House" with Janko Janjic and Dragan Zelenovic. They were brought there by Pero Elez and Radovan Stankovic. Pero Elez said that four girls had to accompany them to Foca and rOUT • had to remain in the house. 'lne fol1o~ing witnesses were forced to go with the AcclL';eJ, Janko Janjic and Dragan Zelenovic: Witness FWS-7S, twenty-four years old at that time. Witness AS, who was less than twenty, Witness AB, aged twelve and Witness FWS-87, aged fifteen. They were taken to an apartment located in a building near a fish restaurant. Witness FWS-75 identified the tish restaurant on a picture shown to her by the Prosecutor and subsequently gave a detailed description of their onival, namely, how and where they entered the building. They arrived in the afternoon and she recalled that it was rallung, stating that those were their tears. The Accused, Janko Janjic and Dragan Zelenovic were the only men in the apanmcnt. Upon their ElITival, FWS-75 noticed somc clothes, indicating that other women had been there before them. AB and FWS-7S were forced by lanko Jajic, nicknamed "Tuta", to clean the bathroom. The Accused took the witness on his lap and said that if they said anything they would be slaughtered and thrown in the Drina River. These witnesses also cleaned the bathtub because ''the Major", meaning the Accused, wanted a bath. The witness stated that the Accused was referred to as "Major" or "Duke". Once they had finished cleaning the bathroom, the Accused threw out witness FWS-75 and rcmained

69 PURL: https://www.legal-tools.org/doc/fac09f/ in there with twelve-year old, AB, According to FWS-75, the Accused told witness AB that he had a daughter older than witness AB,

Witness FWS-75 was then taken into another room where she was raped by Janko JanjiL:. Meanwhile, Witness FWS-87 was roped by Dragan Zelenovlc, who left the apartment thereafter.

Although Witness FWS-75 did not see the Accused rape witness AS, she testified that witnes~ AS later confided in her about the rape. Whilst she is absolutely certain that the Accused raped witness AB in the bathroom, in relation to the rape of witness AS by the Accused, FWS-75 stated that she was 99% but not a 100% sure. She could not guarantee it. The following morning, two soldiers came to the apartment and took the girls to different apanments in Foea.

The Court accepts FWS- 75's testimony in its entirety, since it was given in a credible and • reliable illaMer and is corroborated by her prior statements.

Witness FWS-87 testified before this Court, stating she was taken from Karaman's House to Foea and didn't return. She was taken together with FWS-75, AS and AH. The first night they spent in an apartment in Foea. She remembers also the Accused, Gojko Jankovic and Dragan Zelenovic and she thought there were others. Dragan Zelenovic raped her that night. When asked whether witness AB and witness AS were also raped that night, FWS-87 replied that she did not know, but that they did spent the night there. She described how she and AS were later taken away to another apartment by two soldiers., Kostic and Kovac, where they were raped again. Their ultimate fate was being sold to soldiers from Montenegro, who took them back to Montenegro, from where they managed to escape in April 1993.

The Court takes specific note of FWS-87's prior statement (19-20 January 1996) given to lCTY investigators 11 years ago, just after the war's conclusion. In this statement, FWS-87 stated the follo\\;ng that the four of them "were removed from Kamman's House arollnd fhe middle of October. 1 remember that Jankovic, Zelenollic and TUfa had some kind of tallr.s _ going on wi/h Pero Elez and others in the house. Then Pero Elez told liS that the fOllr olus should go with Jankovic. Zelenovic and TUfa. We/our women were then taken back to Foca. nOI ji:lr from Brena. We were taken to an apartment. J do not know whose apartment rhis was. It was in a part afFoca which 1 rhiM was called Ribarksi. We spent onc night there. We were all mped fhat night by these three. All three of Ihem raped all four of us Ihat night. "

FWS-132, in her statements accepted pursuant to Article 273 (2) CPC of BiB that she saw the Accused taking away the 4 girls together with other soldiers.

Witness FWS-191 testified that before they moved to the Ribarska area (see Item 7 of this Verdict), they had taken food and clothes to an apartment in the Brena block in the Ribarska area. However, when they rerumed, everything had been taken. Janko Janjic took her to an apartment in Ribarksa to retrieve these clothes. In this apartment, FWS-191 saw girls. She stated: she thought there were four of them but she remembers three. She thought she saw FWS-87 or her sister DB. There was a girl, 13 years old, and another girL

70 PURL: https://www.legal-tools.org/doc/fac09f/ This account is partly corroborated by the testimony ofFWS·75. who stated that when Illey were brought to the Ribarksi settlement, they did not have anything to put on. Tn the apartment they fOWld a lot of clothes and they picked somet.hing from these clothes. In the morning when Radomir Kovac and Jago~ Kostic came for them, they took the clothes with them. She stated that a couple of days later, the Ac-cused Gojko Jankuvic came again \\ith FWS-191 who collected those clothes from them and took them back.

By their very nature, the experiences which these witnesses endured were traumatic at the time of their occurrence, and thus, they cannot reasonably be expected to recall the minutiae of the particular incidents charged, such as the precise sequence, or the exact dates and times. The fact that these witnesses were detained over a period of weeks, and in some cases, months, without any opportunity to record their experiences, only made it more ditlicult for them to recall such details at a later stage. The· Court does not believe the minor discrepancies between the evidence of the various \I.~tnesses discredits such evidence . Further, minor discrepancies benveen the testimony and prior statement of the same witness do not undermine their evidence as a whole, where that witness has nevertheless recounted • the essence of the incident in a credible manner. (Prosecutor vs. Kunllrac et al. i.t:. Judgement, Trial Chamber, paragraph 564). The Court tinds this to be the case in relation to this Count of the Indictment.

In relation to this Count .. the Accused purported to have an alibi hegiIU1ing on the specific date of 30 October 1992. According to the Defense, the Accused came to Herceg ~o\'i on this date to celebrate his birthday and subsequently stayed for a substantial period of time in Montenegro, a week at the minimum.

The Defense witnesses, Ljubinka and Milomir Popovic, friends of the Accused, stated that Gojko Jankovic was in Herceg Novi at the end of October, celebrating his birthday with them. Ljubinka Popovic testified that the Accused arrived a couple of days before the celebration and stayed for several days thereafter. According to Milomir Popovic. the Accused arrived on the eve of his birthday. He was driving a white Galt: which was later confiscated. The Accused stayed three or four days. However, the Popovic couple could not provide many other details of that period. The mfe of the Accused, Miuca Jankovic. who, • according to the Defense attorney insisted on testifying despite being under no obligation to so do (pursuant to Article 83 epc ofBiH) stated that the Accused came on 30 Octoher 1992 and remained for seven or eight days, She also confinned that his, car was stopped and confiscated on 2 November 1992 by the Police of Herceg Novi. This was substantiated by the documentary evidence tendered by the Defense. namely the record of an interview taken at Herceg Novi Police Station, during which the Accused was questioned about the c<:Ir confiscated on 6 November 1992 in Herceg Novi.

Having raised the issue of alibi, the Accused bore no onus of proving that alibi. It remained for the Prosecution to establish that, despite the evidence of alibi, the facts alleged in the Indictment were nevertheless true. On the basis of the credible, consistent and corroborating evidenc.e provided by the testimonies ofFWS-75 and FWS-87. the Court considers that the Prosecution has met this burden and established beyond a reasonable doubt that the Accu.~ed participated in the facts alleged in Count 8 of the Indictment. The Panel does not accept that there is any plausible possibility that the Accused was absent when FWS-75, FWS-87, AS

71 PURL: https://www.legal-tools.org/doc/fac09f/ and AB were taken away from "Karaman's House" in Miljevina and taken to an apartment in F oca near a fish restaurant, where the crimes described above were committed.

Moreover, it is noted that whilst the Prosecution must prove the elements of the charged offense. the exact date of events is not a material element of a crime, providing there is no doubt that the event which is proven is the same as the one described in the Indictment. In this case, the testi.monies of ',\!itnesses of FWS-75 and FWS-87 establish that the approximate period in which the offences occurred corresponds to the events alleged in the lndktmeot.

The Court also notes the follo\\iog points specifically in relation to the alibi raised by the Defense. Firstly, the fact that the Accused was in Montenegro around the time the offences were committed, docs not render it impossible that he was, nevertheless, in Foca around the end of October and beginning of November 1992. Even if he did celebrate his birthday in Herceg Novi and was there on 2 November and 6 November 1992, according to the testimony of witness Milenko Paprica, the distance between Herceg Novillgalo and the e roca area could have been crossed in les~ than a three hour's drive, Secondly, the assertion that the Accused, the leader of an important army lUllt from the Foea area, could havc simply remained in Montenegro, where thcre was no fighting, for many days, is improbable during a time of \'I-'3r. Thirdly, the alibi is based on testimonies of the following witnesses: Ljubinka and Milomir Popovic and the v.ife of the Accused, Milica Jankovic. Apart from the Accused's aileged celebration, of which very little detail was given, none of these witnesses was able to give reliable testimony; rather they simply made vague assertions that acussed stayed in the area for a while. The Court furthermore notes that whilst the Popovic couple wer~ not able to give many details about the Accused's alleged alibi, what they did manage to recall was suspiciously similar, even to the extent that they used the same wording. Furthermore, the Court notes that the Popovic \:Cuple's testimony supporting an alibi in relation to Comu 2 and 3 of the Indictment was irreconcilable with the facts that have been established beyond a reasonable doubt. When combined with this Court's finding that the testimonies of FWS· 75 and FWS-87 were credible, honest, and consistent, both with their previous testimonies and corroborating each other, the Court does not to accept the alibi raisoo by the Detl!nge. e

The intention of the Accused to effect the sexual penetration and the knowledge that it was done without the consent of the victim clearly ensue from the presented evidence.

The Court tinds established beyond a reasonable doubt that the Accused. Gojko Jankovic, togeth!!r with Dragan Zelenovic and Janko lanjic. removed female detainees FWS-75, FWS-87, AS and twelve-year old AB from the dctention Center kno ....n as "Karaman's HotL~e" in Miljevina, and drove them by car to an apartment in Foca near a fish restaurant, when~ Janko Janjic ordered the female detainees FWS-75 and AB to give a bath to the Accused Gojko Jankovic. The Accused then raped underage female detainee AB in the bathroom. while Dragan Zclcnovic raped female detainee FWS-87 and Janko Janjic raped FWS-75.

The Court does not consider it established beyond a reasonable doubt that the Accused raped AS on this occasion.

72 PURL: https://www.legal-tools.org/doc/fac09f/ The Accused thereby, within a widespread or systematic attack against the Bosniak civilians in the area of Foca Municipality and with knowledge of such attack and wilhngly participating in it by his actions, committed the criminal offense of rape of th~ injur~J party AB, under Article 172 (1) item g) CC of BiH. The act of rape of AB also fulftlls the legal requirements for torture as described in Article 172 (1) item and f) CC of BiH, since the act of rape caused severe pain and suffering, was intentional and the prohibited purpose was present, namely discrimination on the basis Bosniak ethnicity. AB was taken from a detention facility where only Bosniaks were held. She was and could only be the victim of the above described hu.miiiations, as for many other Bosniak women, because she was not Serb.

Furthennore, the Accused aided and abetted the torture and rape of the injured parties FWS 75 by lanko lanjic and FWS·S7 by Dragan Zelenovic, as proscribed under Anicle 172 (I) items f) and g), in conjunction with Article ISO (1) CC ofBiH. The Accused, together with Dragan Zclenovic and lanka Janjic, took away the victims from "Karaman's House", in the full knowledge that FWS-87 and FWS-75 were being taken for the purpose of rape. He • thereby provided assistance to the perpetrators of the acts of rape ofFWS-87 and FWS-75. This also amounts to aiding and abetting the torture of FWS·75 and FWS·87, since the acts committed against these victims fulfils the legal requirements of torture, for the some reasons as stated above.

d. Acquitting part

With regard to the acquining part of the Verdict, the Court establishes the following: 1. Under Item 1 (Count 4 of the amended Indictment of 22 December 2006), the Accused was charged as follows: Between April 1992 and November 1993, within the territory of the Fo~a municipality, as the leader of an military unit acting within the Fuca Brigade of the Army of the Serb Republic of Bosnia and Herzegovina (hereinafter referred as 'the Anny'), he took part in a widespread or systematic attack by the Army, memocrs of the Police and paramilitary formations against the non-Serb civilian population in the wider area of Foca municipality, whereby those civilians were methodically captured, being physically abused and killed in the attack, separated according to sex, and detained in • several facilities including the Foea Corredionai Institute, for the men, and Buk Bijela, the fo~a High School, Partizan Sports Hall, a house at Vlica Osmana Bikica no.16, a hOUSe in Miljevina kno\Vt1 as Karaman's house, a house in Trnovata and other places for the women and girls where they were detained under harsh conditions and subjected to physicaL mental and sexual abuse by their captors, while Muslim houses and apartments in Foeu and neighboring municipalities were looted, destroyed and bumt down, as more particularly set out below, in that:

1. On 3 July 1992, a number of soldiers under the command of the Accused Gojko Jankovic, brought a captured elderly man Redia Pekaz from the village of Trosanj in front of huts at Buk Bijela where he was beaten and the other detainees and the Accused Goiko Jonkovic himself could hear his screams; then they took him near the bank of DrinCl Ri"ver and shot him dead.

7J PURL: https://www.legal-tools.org/doc/fac09f/ It is indisputable that thl! killing of RedZo P~kaz took place! at the time, in the place and in the manner as described in the Indictment This is established from the testimonies of witnesses FWS- 75, FWS~96, FWS-88, FWS-74 and DB and the material documentation, namely, u letter from the Federal Commission on Missing Persons providing information about the victim. The aforementioned witnesses all saw several soldiers taking Redto Pekaz, who had already been beaten up and was covered with blood, towards the Drina River. Furthcnnore, after seeing that taking away, those witnesses all testified to hearing a shot from the direction in which the soldiers had taken Pekaz.

Although the fact and manner of the victim's killing has been established, nonc of the witnesses were able to identify the specific soldiers who took Red~o Pekaz away. As such, the Court cannot presume that the Accused, Gojko Jankovic, bad effective command over those soldiers.

The fact that the Accused was in de facto command on Kremenik Hill, the event which preceded the bringing of children, women., and later, Redfo Pew to Buk Bijela, (which the _ Court reasoned as irrefutable in section 2 of the sentencing part of the Verdict), does not of itself mean that he commanded every soldiers in Buk: Bijela, including those who beat and then killed Redfo Pekaz. It has not been proven who those soldiers were, to which unit they belonged and whether or not they had participated in the operation earlier that day. Although the Court has found it proven that the Accuse-d was at Buk Bijela when Red~o Pckaz was beaten and killed, it does Dot follow that those soldiers who killed him were at least under his de facto command. In this respect, the Court notes that during the evidentinry procedure it became clear that many units, not only the Accused's, participated in the actions which took place on 3 July 1992.

Thus, the soldiers who beat and killed RedZo Pekaz could have been under the command of any of the leader-commanders who were involved in the actions. The proven facts mentioned above, do not constitute the necessary cuuse-and-effect relationship between the Accused, as a leader of a platoon-size military group, and the acts of those soldiers which culminated in the killing of Redfo Pekaz. For this reason, on the basis of aforementioned evidence, the Court cannot conclude beyond reasonable doubt that those soldiers were under _ the command of the Accused, Gojko Jankovic. Therefore. pursuant to Article 284 (3) cpe of BIH, it acquitted the Accused of charges for the acts referred to in Article 172 (1) item a) CC ofBiH.

2. Under item 2 (the Indictment of 27 June 2006) - in this Verdict also referred to as the "second Indictment"- the Accused was charged as follows: . Between April 1992 and November 1993, within the territory of the Fo~a municipality, as the leader of an military unit acting within the Fota Brigade of the Anny of the Serb Republic of Bosnia and Herzegovina (hereinafter referred as 'the Anny'), he took part in a wtdespread or systematic attack by the Army. members of the Police and paramilitary fonnations agai.nst the non-Serb civilian population in the wider area of Foca municipality, whereby those civilians were methodically captured, being physically abused and killed in the attack, separated according to sex, and detained in several facilities including the Foce Correctional Institute, for the men, and Buk Bijela, the Fota High School, Partizan Sports Hall, a house at Ulica Osmana Bikica 00.16, a house in Miljevina known as Kamman's house, a house in TmOV3C.!l and other places for the women and girls where they were

74 PURL: https://www.legal-tools.org/doc/fac09f/ detained under harsh conditions and subjected to physical, mental and sexual abw;e by their captors, while Muslim houses and apartments in Fota and neighboring municipalities wer..: looted, destroyed and burnt down, as more particularly set out below:

2. In the period from 7 April to early ~y 1992, together with lanko Janjic, Ljuban Kalajdfic and an unidentified soldier, Gojko Jankovic came to a Muslim house in Foca occupied by the protected witness E, where she was forced to sexual intercourse in that she was being held by the suspect and the unidentified soldier while Janko Janjic raped b..:r: and then on 10 to 15 closely succeeding but unknovm dates between late April 1992 and late May 1992 Gojko Jankovic, Janko Janjic and the unidentiiied soldier came to her house and on each occasion Gojko Jankovic raped protected witness E who was also raped on many of those occasions by Janko Janjic Or the unidentified soldier, or by both of them; and in latc May 1992 Gojko Jankovic, Janko Janjic and the unidentified soldier deprived protected witness E of hcr liberty by forcefully taking her to Partizan Sports Hall in Faca where she remained in detention for several weeks together with other women including Witness J, and where she saw Gojko Jankoyic on further occasions, <1od was also raped once by a • soldier she did oat know. As evidence in support of this Count, the Prosecution called the injured party, witness E. witness J and Jusu[ tolpa. All testified in Cour1 in relation to this charge. The Defense relied on witness Ljubomir Miletic who disputed their accounts.

In particular, witness E stated that her husband left Foca alone some time before the WriT began. Her children left Fota with the help of her neighbour, Jusuf Colpa, who drove them away in his car, despite it already being full. Witness Jusuf Colpa cOITooorated those statements.

On the other hand, witness Ljubomir Miletic, who grew up with the injured party, has known her for at least thirty five years and is married to her sister, was convincing and consistent in his testimony, to the effect that at the begiruting of war, witness E and her family were hiding in a boiler-room where her husband used to work in Foca. Within seven to eight days she had already left FOCa, going through Grebak towards Ustikolina. Miletic next saw the injured party again immediately after the end of the war in Sarajevo, where her • mother and his wife live. This "Witness contested every suggestion thut the injwed party had remained in Foca fllld been captured and taken to the Partizan Sports Hall. In particular, he disputed that he had been the one who saved her from ''Partizan''. The witness asked for a confrontation face-to­ face with the injured party. He spoke about unrest which this alh:ged event had caused in his family. Although they did not all reside together in Foca any more, they are still in constant contact and have good relations. He restated that he had been in contact with the injured party throughout the post-war period and that she had mentioned nothing to him simiiar to her account before the Court.

Furthermore, it is notable that the injured party could not say which of her fellow femaJe townspeople, acquaintances and perhaps even friends were detained in the Partizan Sports Hall. Witness J clearly remembered being detained with many women from Fota. but also some from the surrounding villages and explained: "there were many women in Parrizal1

7S PURL: https://www.legal-tools.org/doc/fac09f/ alld almost all of us knew each other, but there were some unknown from surrounding villages ". This witness confinned that the injured party was also detained with her, but that they never talked to each other, because in Partizan "it was not possihie to talk, only to give afew mysterious glances. we only kept silent".

It is an established fact that the Partizan Sports Hall was a detention centre where many women were detained. Amongst these detainees, there must certainly have been many whom the injured party must have known, if for no other reason than because they lived in a small community where most people knew each other, at least by sight. For this reason, there is good cause to doubt witness E'g testimony. With the exception of witness J, the injured party did not even describe any of the other female detainees in Partizan.

In any event, even if the aforementioned events in Fota did take place, the testimony of this witness, as the sole 'eyewitness', could not lead to the conclusion that the Accused panicipate in the alleged rape. Although the injured party based her identitication of the • Accused on the fact that he wall the person who owned a bar in Trnovata, she was unable to provide responses to all further questions requiring a description of the Accused. She stated that she did not know the answers and could not remember when she first saw the Accused.

When this lack of detail about the Accused is combined with the fact that the rapes all occurred during the night, with no lights on, that the attackers had torches glaring in her eyes and that, by her own admission, she did not dare to look at them because she was afraid, the participation of the Accused in those alleged actions is disputable.

In the final outcome, evcn thc alleged participation of witness Mileti6 Ljubomir and Ljuban Kalajdiic in the taking out and release of the injured party from "Partizan" is also questionable. The Prosecutor informed the Court that he did not want to call the injured party E as a rebuttal witness, because she had informed him that she might have made a mistake in the identification of witness Ljuoomir Miletic. for all the foregoing reasons, the Court cannot conclude beyond reasonable doubt that the alleged acts took place in the manner and at the time described, and in particular, it calillot _ conclude that the Accused, Gojko Jankovi6, participated in their perpetration. Therefore, pursuant to Article 284 l3) CPC of BiH, this Court acquitted the Accused of charges for the acts referred to in Anicle 172 (1) item g) CC ofBiH.

7. Sentencing

As regards the convicting part of the Verdict, the Court found the Accused guilty of the mentioned criminal acts, i.e. the offence perpetrated and, with the application of the legal provisions cited, it established a punishment of 34 years imprisonment.

According to the closing argument of the Prosecutor the Accused was not charged with and the Court has not convicted him of command responsibility under Article 180 (2) CC of Bili. Nonetheless, the evidence clearly shows that Jankovic de facto acted as the leader of his Platoon during the military operations on the 14 April 1992 at Brezme and on the 3 July 1992 on the Kremenik hills and at Buk Bijela and that he had substantial influence over some of the other perpetrators.

76 PURL: https://www.legal-tools.org/doc/fac09f/ This fact is considered in aggravation - the criminal culpability of those leading others is higher than those who follow. As aggravating circumstances, the Court also tooh: into account that several of the captive civilian male on K.remenik hills were brutally beaten and severely wounded in front of children and women amongst whom were their closest family and shortlY after the children and women had been taken away, subsequently killed the men.

Furthermore, the offellSes of the Accused committed against particulary vulnerable and Defenseless women arid girls . is, considereo' as an aggrevating factor. He raped victims FWS-191, FWS-l05, FWS-9S; FWS"'186'and "AB" and he co-perpetrated in the rape of FWS-87 and FWS-75. wJ;en :the ,rapes were: c'ommitted the women and girls were respectively of age 17 yeais~' 32 years, 17 yea~, I Q.years, 12 years, 15 years and 25 years. FWS-19l and FWS 186 ,!were . held in sexual.., slavery in the house in Tmovaca. Raping a juvenile who was only 12 .. years ·old is a factor ,which increases the gravity of the crime us well as the fact that undemg~d girls we-re hcl~.·in s!xunl slavery. Funhennore the victims FWS-191 and FWS 186 were.subj~~t of slavery·over a period of at least 5 months and a • period of such lengths is c1early.'enough 't~ aggrevate the sentence for the offense. This in the rt=gard to the fact that crimes"were comrtlined in wartime, in which young and elderly women need special protection in order to prevent them from becoming easy targets.

NOlle of the hereformentioned criminal acts o<:cured within the midst of a battlefield. On the contrary; all the crimes the Accused is convicted for are committ=d agains vulnerable and Defenseless civilians, which is also considered in aggravation, als well as the fact that the Accused's conduct repeatedly showed that he had a complete disregard for this victim's welfare and that he showed no remorse.

The Court is satisfied that there arc no relevant mitigating circumstances, except for his family status as father of three children.

The Court holds that the imposed punishment is proportionate to the severity of the committed criminal offense, the degree of criminal liability of the Accuse.d, the circumstances under which the crime was perpetrated and the motives of the Accused for • perpetrating the criminal acts concerned and the sentence imposed \vill meet the purpose or punishment under Article 39 CC ofBiH, both in tenns of special and general prevention.

Pursuant to Article 56 CC of BiH, the time the Accused spent in custody from 14 March 2005 onwards shall be cotUlted as part of the punishment ofimprisorunent.

Given that the Accused. was pronounced guilty, the decision on costs was issued pursuant to Article 188 (1) CPC of BiH. The Accused is under the obligation to pay the costs of tht criminal proceedings given that, in the view of the Court, it was not proven that the Accused is indigent. The Court was, therefore, unable to apply the provision of Article 188 (4) CPC of BiH based on which he would have been relieved of the duty to reimburse the costs of the criminal proceedings in whole or in part. The amount of the c'osts, in particularly in view of the acquitting part of the Verdict, will be determined by the Court in a separate decision, pursuant to Article 186 (2) epe of BiH,

77 PURL: https://www.legal-tools.org/doc/fac09f/ When deciding to advise the injured parties to take civil action to senle their property claim, the Court was guided by the fact that there are quite a few injured parties in these proceedings and that the determination of the amount of the property claim would take extensive time and thus delay the proceedings. Therefore, it has been decided in accordance with the provision of Article 198 (2) epe ofBiH.

RECORD-TAKER LegaJ Officer ;t:l0%~ •

REMEDY: An Appeal against this Verdict may be filed with the Appellate Division of the Court within 15 days from the date of receipt of the copy of the Verdict in writing.

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